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Justice Nominee's Confirmation in Jeopardy

By Roberto Suro
Washington Post Staff Writer
Wednesday, November 5 1997; Page A01

President Clinton's nomination of Bill Lann Lee to the nation's top civil rights job was in grave danger yesterday, with Senate Republican leaders accusing Lee of taking unconstitutional views on race-based preferences and suggesting that any future nominees would face a tough new standard on affirmative action.

In a lengthy speech on the Senate floor, Judiciary Committee Chairman Orrin G. Hatch (R-Utah) said he will oppose Lee's nomination because he fears the veteran civil rights attorney would use the Justice Department job to fight widespread efforts around the country aimed at dismantling affirmative action programs. Lee, in a view he shares with the Clinton administration, has opposed California's Proposition 209, a ballot initiative passed by voters last year that abolishes race- or sex-based affirmative action in a variety of state programs.

Administration officials angrily denounced Hatch's stand as a new litmus test that would make it impossible for Clinton to fill key vacancies with nominees who simply agree with the president on basic civil rights policy.

After an emergency White House meeting on the issue yesterday afternoon, Clinton said: "How can anybody in good conscience vote against him if they believe our civil rights laws ought to be enforced? That is the question we will be pressing to every senator without regard to party."

Hatch portrayed Lee, a Californian, as a determined activist who would use his position as assistant attorney general for civil rights to support racial preference programs "until every possible exception under the law is unequivocably foreclosed by the Supreme Court."

"Lee must be America's civil rights enforcer, not the civil rights ombudsman for the left," Hatch said.

Three other key Republicans – Senate Majority Leader Trent Lott (Miss.), Majority Whip Don Nickles (Okla.) and Sen. Mike DeWine (Ohio), a crucial vote on the Judiciary Committee – immediately made clear they would back Hatch's position.

Some Republicans on the 18-member committee remained publicly uncommitted, but Democratic and Republican Senate staff members said yesterday that it seemed unlikely Lee could muster the two Republican votes he will need, in addition to the committee's eight Democrats, to survive a scheduled vote Thursday.

A senior administration official had a somewhat more upbeat assessment. According to the White House count, at least one Republican will support Lee, leaving the committee vote tied as of last night, and a vigorous campaign was underway to round up an additional vote.

An administration official also noted that one of Clinton's options would be to put Lee in his job as a "recess appointment," allowing him to take the job on a temporary basis.

While vowing to redouble their support for Lee, administration officials were already looking beyond his fate to that of other pending nominations. Seth Waxman, the acting solicitor general, goes before the committee for a confirmation hearing today as a permanent nominee to the number four job at the Justice Department and the government's top advocate before the Supreme Court.

"According to Hatch's new standard, any nominee for any top job can be rejected for agreeing with the administration's previously articulated positions on very crucial civil rights issues," said a senior Justice Department official.

Hatch condemned Lee yesterday as having "fallen victim to President Clinton's double-talk on the issue of racial and gender preferences."

White House press secretary Michael McCurry struck a sarcastic note: "If Chairman Hatch believes that someone should follow the policies that he wishes to pronounce in the area of civil rights, which I suggest would amount to rolling back some of the progress we've made in civil rights, then Orrin Hatch should resign from the Senate, run for president, and he can name his own assistant attorney general for civil rights."

Lee is the western regional counsel for the NAACP Legal Defense and Educational Fund and is best known for negotiating legal settlements in which employers agree to hiring plans and other efforts designed to remedy the effects of discrimination. Soon after his nomination in June, Lee received near unanimous support from Democrats as well as backing from several Republicans, including Sen. Alfonse M. D'Amato (N.Y.) and Los Angeles Mayor Richard Riordan.

Hatch has often spoken warmly of Lee and expressed a desire to support the nomination during a smooth confirmation hearing on Lee less than two weeks ago. But since then Lee's nomination has become the focus of Republican legislators and conservative activists such as Clint Bolick, vice president of the Institute for Justice, who depicted Lee as too liberal on issues from school desegregation to university admissions policies.

Lee's opponents concentrated their efforts on making his nomination a congressional test case on affirmative action and in his speech yesterday Hatch adopted that view.

"While I do not question Mr. Lee's integrity, I am concerned about his commitment to serve every citizen of the nation in equal measure," Hatch said.

At issue is the extent to which governments at any level can use sex or gender preferences in affirmative action programs. In 1995 the Supreme Court, in Adarand v. Pena, found that such preferences are unconstitutional unless they meet a strict test requiring the government to show it has a compelling interest to carry out such policies and that the programs will be narrowly tailored and of limited duration.

Since Adarand, the fight over what kind of affirmative action is still permitted has been contested primarily outside Washington in lawsuits and ballot initiatives. Although Lee vowed at his confirmation hearing to implement Adarand, Senate Republicans used his nomination to bring the fight back to the Capitol and to challenge the administration to do battle.

"Mr. Lee's view of the law, it seems to me, is exceedingly narrow and violative of the court's holdings," Hatch said. "We must expect more of the nation's chief civil rights law enforcer."

Staff writers John F. Harris and Helen Dewar contributed to this report.

© Copyright 1997 The Washington Post Company

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