Supporters of Bill Lann Lee, who faces likely Senate defeat today as President Clinton's nominee for assistant attorney general for civil rights, claim that their man is suffering from guilt by proxy. Conservative opponents of Lee, they say, are opposed not to the man but to the president who stands behind him. What the right really wants, they say, is a civil rights chief who is against the president's own civil rights philosophy and for what White House spokesman Michael McCurry has rather snidely called the conservatives own "peculiar philosophical view."

It is easy to feel some sympathy for the position in which man and administration find themselves. The president supports affirmative action programs. Given that virtually all attorneys sufficiently expert in civil rights law are likely to be either for or against affirmative action, it's natural that the president should choose a for-er rather than an aginner. And Lee is an honorable for-er. He has spent a career in advocacy of an approach toward the goal of racial egalitarianism that he believes is the moral approach. Why should ideologues of a contrary view -- Hatch, et al. -- have the right to insist on a nominee who is more amenable (or at least less opposed) to their aginner philosophy? Well, let's start by being clear about the nature of the job that Lee seeks and the nature of the circumstances under which he seeks it. The assistant attorney general for civil rights is the nation's chief enforcement officer in this area of the law, with 250 attorneys at his disposal. And this area of the law is in considerable flux. The Supreme Court and other high courts have in recent years repeatedly ruled against affirmative action programs as unconstitutional. Most recently and notably, the court declined to hear a challenge to California's Proposition 209, which bans the use of racial and gender preferences in state-sanctioned activities. The court thus in effect upheld the ruling by the liberal U.S. Court of Appeals for the 9th Circuit, which ruled that "{a}s a matter of conventional' equal protection analysis, there is simply no doubt that Proposition 209 is constitutional." Other important recent decisions that have greatly curtailed the constitutionally permissible limits of affirmative action include the Supreme Court's ruling in Adarand Constructors v. Pena, which held that the use of racial distinctions in state programs is presumptively unconstitutional and must be proven to be narrowly tailored to meet exceptional circumstances.

As civil rights chief, Lee would be sworn to uphold the Constitution and enforce the law as defined by Congress and the courts. Conservatives argue that he could not be trusted to serve as a fair and impartial enforcer, that he would likely interpret the court's rulings as narrowly as possible, seeking to protect even programs that clearly violate the courts' definition of what constitutes constitutionality. This is different from saying that Lee is for or against affirmative action, and it is different from demanding that the president send up an aginner as a nominee. What Senate conservatives are saying is that they think Lee will not properly enforce the law against unconstitutional affirmative action but will, like his predecessor Deval Patrick, instead use his office to wage a rear-guard fight against the changing law. Is this a reasonable objection?

Yes, the evidence strongly argues. Like Patrick, Lee is a career civil rights advocate, the bulk of that career spent working for the NAACP Legal Defense Fund, first as a staff counsel and later as director of the fund's Western Office. He has a long and active history litigating affirmative action suits and achieving results of the sort now called into question by the courts. He has strongly supported forced busing for desegregation ("The term forced busing' is a misnomer," he once wrote. "School districts do not force children to ride a bus, but only to arrive on time at their assigned schools.") He has fought aggressively on behalf of the most sweeping affirmative action programs, including programs using such tactics as the use of racial and gender "set-asides" and "goals and timetables," or what detractors call quotas. In the most important issue that would come before his office, the handling of sweeping mandates against affirmative action like Proposition 209, Lee has been a dedicated rear-guarder. His Legal Defense Fund office filed a brief challenging Proposition 209 as "a major obstacle to federal law enforcement" and "a bully in the schoolyard." And Lee led an aggressive (and quite creative) attempt to get the federal government to take sides against California's efforts to end racial preference in its state university admissions. He filed a complaint with the Labor Department charging that a drop in minority admissions to the University of California, which occurred after the university moved to a race-neutral admissions policy, violated affirmative action rules for federal contractors (of which the university is the nation's largest). He also filed a complaint with the Department of Education, arguing that the university's drop in minority admissions showed that the use of objective measurements for admission, such as test results and grades, was discriminatory.

Well, that was all then, says Lee, and this is now; if confirmed he would put aside his personal sympathies and fairly administer the law. Is this likely? Could Lee, as civil rights chief, be trusted to enforce the courts' rulings on the law, even if he strongly disagreed with those rulings? Again, the evidence suggests not. Under questioning from the Justice Committee, Lee was asked what he took to be the meaning of the Supreme Court's ruling in Adarand. He said the meaning was that racial distinctions in state-sanctioned programs were fine as long as the programs were conducted "in a limited and measured manner." This, of course, was not the meaning of Adarand; it was the exception to the meaning. It was the loophole, not the law.

It is a perfectly fine to believe that affirmative action is necessary, and to fight against court rulings that change civil rights law to limit affirmative action. But it is not perfectly fine to do this while serving as the government's chief interpreter and enforcer of that law. Conservatives who oppose Bill Lann Lee may be upholding their peculiar philosophy. But they are also upholding the Constitution, the doctrine of the separation of powers and the rule of law. Michael Kelly is a senior writer at National Journal.