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Sen. Hatch's Unfair Opposition

By Nicholas Lemann
Wednesday, November 12, 1997; Page A23

opinion
There is always a lot of subtext in Senate confirmation battles, but the fight over Bill Lann Lee's nomination to be assistant attorney general for civil rights has a particularly high ratio of unstated backstory to stated issue.

Lee is on the brink of being rejected for the job, mainly because Sen. Orrin Hatch, the chairman of the Senate Judiciary Committee, has come out against him. Hatch has various complaints about Lee, but the main one is that Lee supports a failed legal challenge to Proposition 209, the California initiative that banned state affirmative action programs. During Lee's confirmation hearing, Hatch repeatedly complained about this challenge, which put forth the argument that any attempt to dismantle racial preferences is itself racially discriminatory and therefore unconstitutional. He invited Lee to distance himself from it, and Lee tersely declined to.

For this point to be Lee's Achilles' heel is ironic, to say the least. Here's why.

At 9 o'clock on the morning after Election Day 1996, when Prop 209 passed, the California chapter of the American Civil Liberties Union filed a lawsuit to have it overturned. It is this lawsuit that makes the argument (which is, in fact, a real stretch) that Hatch objects to. A sympathetic San Francisco federal district judge named Thelton Henderson quickly produced a favorable ruling that prevented Prop 209 from being put into effect.

Conservatives were outraged by Henderson's ruling, but it didn't stand for very long: A three-judge panel from the 9th Circuit Court of Appeals soon overturned it. The ACLU appealed to the Supreme Court, which in late October refused to hear the case. Prop 209 now goes into effect.

After the ACLU filed its suit, various liberal and civil rights organizations lent their names to it. This produced surprises.

The first surprise was that the organization Bill Lee headed, the Western office of the NAACP Legal Defense Fund, did not join in the suit. From this it seems fair to infer that Lee, although certainly not a supporter of Prop 209, agreed with Hatch that the ACLU's argument did not hold water. Instead, Lee's organization filed a brief arguing against Prop 209 on a much more cautious ground, that it would create an unacceptable disparity between constitutional law as defined by the Supreme Court, under which affirmative action is permitted if it meets a "strict scrutiny" standard, and California law as created by Prop 209, under which affirmative action is never to be permitted under any circumstances. Hatch has complained only about the ACLU's argument, not about the Legal Defense Fund's.

The second surprise was that the Clinton administration, which had become notorious in civil rights circles for sitting on its hands all through the Prop 209 campaign in California, did join the ACLU lawsuit, the one that Hatch so much objects to and that Bill Lee steered clear of. (Calculations tend to change after Election Day.)

So Bill Lee is in an odd position: During his hearing, when Hatch prodded him to condemn the ACLU lawsuit and he would not, he was protecting the administration he would like to join, not adhering to a personal conviction. What that means is that Hatch is never going to get a nominee for the civil rights job who is willing to disown the ACLU's argument, because that would mean disavowing an official administration position. Hatch's real beef is with Janet Reno and Bill Clinton, who signed on to the ACLU suit; what he has in Bill Lee is a nominee who, in his previous job, refused to do so.

It's possible that Hatch doesn't realize any of this, because loyalty to the administration prevents Lee from discussing it candidly. Another possibility, though, is that Hatch, who has been under attack from the conservative movement lately for being suspiciously moderate, is unfairly turning Bill Lee into a symbol in order to demonstrate his toughness toward the supporters of affirmative action.

The writer is national correspondent for the Atlantic Monthly.

© Copyright 1997 The Washington Post Company

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