Newsreal: Ended, not mended

By upholding California's Proposition 209, the Supreme Court effectively defeated the Clinton administration's top civil rights nominee -- and drove a huge nail into the president's "mend, don't end" affirmative-action policies.


Jonathan Broder
November 7, 1997 1:00AM (UTC)

Bill Lann Lee is a virtual dead man. Even though the Senate Judiciary Committee postponed Thursday's vote on his nomination, Lee, President Clinton's choice for the top civil rights position in the administration, will likely receive the political coup de grbce from the GOP-controlled Senate. And he has the U.S. Supreme Court to thank for it.

Administration officials and Democratic aides in Congress concede it is doubtful Lee will get past the Judiciary Committee, no matter when it takes up the vote. They say the Supreme Court's decision earlier this week to let stand Proposition 209, California's ban on affirmative-action programs, is the major reason why.

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"In a normal world, the court's decision shouldn't have any effect whatsoever," said a dispirited David Carle, spokesman for Sen. Patrick Leahy, D-Vt., the ranking minority member of the Judiciary committee, who managed to postpone Thursday's vote. "But with the feeling among Republicans against affirmative action, I'm afraid it is having an effect. This is going to be very tough."

Lee, Western regional director of the NAACP Legal Defense fund, would have been the first Asian-American to hold the civil rights job, which has been vacant since the resignation of Assistant Attorney General Deval Patrick last January. And up until Monday, his chances looked good of getting at least two Republicans on the panel to join with the eight Democrats who had voiced their support for his nomination.

Then came the Supreme Court's decision, which was widely applauded by Republicans who have supported California's controversial measure and backed similar campaigns under way in several other states. The California measure, which passed last November, bans race- or gender-based preferences in public hiring, contracting and school admissions. It had been tied up in the courts until Monday's high-court ruling, which rejected a challenge by civil rights groups that called Prop. 209 unconstitutional.

On Tuesday, the Judiciary Committee chairman, Sen. Orrin Hatch, R-Utah., who had previously been undecided, announced from the Senate floor that he would oppose Lee's nomination. "The assistant attorney general must be America's civil rights enforcer, not the civil rights ombudsman for the political left," Hatch said. "Unfortunately, much of Mr. Lee's work has been devoted to preserving constitutionally suspect race-conscious public policies that ultimately sort and divide citizens by race." Hatch's use of the words "constitutionally suspect" underscored the immediate political impact of the Supreme Court's decision.

In addition to Hatch, Sen. Strom Thurmond, R-S.C., has publicly come out against Lee. Sens. Michael Dewine, R-Ohio, and Spencer Abraham, R-Mich., will also oppose the nomination, congressional sources told Salon. And even if it should get through the committee, Sen. Mitch McConnell, R-Ky., said Thursday he would move to prevent the nomination ever coming to the full floor.

Publicly, the administration remains committed to Lee's nomination, but privately it holds out little hope. "It doesn't look good," one official told Salon. The official gloomily forecast that the Supreme Court decision would have a devastating impact on the administration's affirmative-action policies, Even though Houston voters on Tuesday bucked the trend and voted to keep their local affirmative-action program in place. "I predict that in a few years, 80 percent of affirmative-action programs in the country will be rolled up," he said.

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The high court's ruling was particularly damaging to Lee's chances because he had supported the constitutional challenge to Prop. 209. Until now, conservatives have criticized Lee simply as a liberal supporter of race-based programs. Now, as Hatch's floor speech underscored, they can add the constitutional weight of a Supreme Court edict to their opposition.

Some Asian-American groups have reacted angrily to the GOP'S opposition to Lee, and observers have suggested his rejection could cost Republicans Asian-American support in the 1998 midterm elections and the presidential contest in 2000. But that is not at all certain. Susan Au Allen, the president of the U.S. Pan-Asian American Chamber of Commerce, a trade organization that represents Asian-American business interests, led a delegation of members Monday to meetings with Hatch and other committee members, urging them to vote against the Lee nomination.

Veena Rao, a Washington businesswoman of Indian descent who took part in the delegation's meetings, told Salon that Lee "stands for policies that don't work anymore," including "quotas and preferential treatment based on skin color and gender." She was especially critical of Lee's support for forced busing and cited the situation at prestigious Lowell High School in San Francisco, where she said qualified Chinese-American students were being denied admission because of a 40-percent admissions cap on Asians. "That's open discrimination," she said.

Asked if she felt Asian-Americans no longer needed affirmative action programs, Rao replied: "We're not saying affirmative action is wrong. What we don't like is the way Mr. Lee goes about it. And we're not alone. Many, many Asian-Americans feel the same way."

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Jonathan Broder

Jonathan Broder is Salon's Washington correspondent.

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