Lee Appointment Turns Ugly

Chances Dim: Bill Lann Lee's confirmation as assistant attorney general has more to do with the debate on affirmative action than with his credentials.

Republican opposition grows to Clinton nominee for assistant attorney general

BY FRANK WU

The fight over the nomination of Bill Lann Lee to the highest ranking federal civil-rights job has evolved into a symbolic battle over the future of affirmative action. Lee, a 48-year-old Los Angeles lawyer with the NAACP Legal Defense and Educational Fund, would be the first Asian American ever to hold the assistant attorney general post. Republicans, who control the Senate, are reluctant to approve him, largely due to a blend of partisan and race politics.

To secure the position, Lee must win 10 votes from members of the Senate Judiciary Committee. The eight Democratic members are expected to side with him. He must persuade at least two Republican members to cross party lines. The vote is scheduled for Nov. 6.

Only a month ago, Asian American groups such as the Organization of Chinese Americans (OCA) along with the Clinton administration believed Lee, as a historic choice, would easily pass through the Senate hearings. He garnered early support from Republicans including Los Angeles Mayor Richard Riordan, who he sued on behalf of the NAACP many times. Even Sen. Strom Thurmond, R-N.C., appeared inclined to vote for him, but has since changed his mind.

The shift in the attitude of Republicans occurred slowly at first, but took a sudden turn when House Speaker Newt Gingrich wrote a public letter to Senate Majority Leader Trent Lott suggesting that Lee be denied confirmation. Although the Senate, not the House, is supposed to offer "advice and consent" for top administration jobs, Gingrich has taken an interest in the Lee matter.

Writing on Oct. 27, Gingrich said that "the Senate must seriously consider the implications of approving someone to the Justice Department who seems to ignore the colorblind nature of the Constitution and [who] will apparently resort to underhanded methods to achieve an ideological goal."

In a one-page letter on his official letterhead, Gingrich accused Lee of acting "in a duplicitous manner" to "violat[e] ... the letter of the law as well as its spirit" in a case concerning sexual harassment and racial discrimination. Gingrich said that because California voters had passed Proposition 209, Lee's actions to challenge its constitutionality would be "thwarting of the will of the people."

Two days later, the assistant city attorney for Los Angeles, Robert Cramer, who is handling the case described by Gingrich, responded to the accusations in an open letter to Sen. Lott. According to Cramer, "the speaker has been misinformed about many of the facts ... and therefore the conclusions he reaches about Mr. Lee's fitness for public office ... are unwarranted."

Cramer said that the settlement offered by Lee in the case, which is still pending, would not involve the use of racial or gender quotas, but "in fact forbid[s] them." Cramer made clear that he "disagreed profoundly on many issues" with Lee, but that in the case mentioned by Gingrich "nothing in Mr. Lee's conduct reflected any violation of court rules, either in fact or by appearance."

After Cramer made his letter public, the National Asian Pacific American Legal Consortium issued a statement suggesting that Gingrich's letter was "based on ridiculous allegations."

Also playing a leading role in the offensive against Lee has been Susan Au Allen, the executive director of the U.S. Pan Asian American Chamber of Commerce, which identifies itself as representing Asian American business interests. Au Allen has frequently voiced her opinion that affirmative action harms Asian Americans as a guest on television shows.

She was one of only two witnesses to testify against Lee at public hearings held by the Senate Judiciary Committee. This week, according to the Wall Street Journal, she led members of her organization on visits to senators to reaffirm opposition to Lee.

The central issue for Lee is his support for affirmative action. Having spent months preparing for his Judiciary Committee hearing, Lee emphasized his family history. In particular, Lee focused on how his father, a U.S. military veteran, was unable to rent an apartment because of prejudice, and how Lee himself grew up in modest circumstances in Harlem. Lee himself benefited from one of the earliest forms of affirmative action when he was accepted to Yale University at a time when its Asian American enrollment was a fraction of what it is today, even taking into account the growth in the APA population.

Questioned by senators on the subject, however, Lee said that he disapproved of quotas and would abide by the law as interpreted by the United States Supreme Court.

Nonetheless, Lee's views about affirmative action have created controversy. He is best known for settling with defendants using "consent decrees," court approved deals that typically involve remedial plans to address racial discrimination. According to Lee and lawyers who have opposed him but support his nomination, his "consent decrees" stayed away from quotas, which would not have met with court approval in any event.

John Yang, president of the Washington chapter of the Asian Pacific American Bar Association, told AsianWeek in an interview that Lee "has proven himself a good leader of racial issues, which are very divisive--he has a conciliatory approach."

As the fight over Lee became more intense, Republicans denied reports that they had offered a deal with the White House. Sen. Patrick Leahy, D-Vt., said that Sen. Orrin Hatch, R-Utah, the chair of the Judiciary Committee, offered to endorse Lee if the White House promised not to support Proposition 209, the California anti-affirmative-action ballot measure, if it came before the Supreme Court.

Similarly, the New York Times reported that legislators who met with Hatch confirmed that he had suggested Lee could be confirmed in exchange for a change in Clinton administration policies. "[Hatch] said that if the administration would back off its support for legal challenges to Prop. 209--because they would lose anyway at the Supreme Court--this would make it easier for him to support Bill and sell him to his caucus," Rep. Maxine Waters, D-Calif., who heads the Black Caucus, told the Times.

Republicans said that no proposal was made after a White House spokesperson rejected the notion and Attorney General Janet Reno indicated that, "Any demand to change a litigation position in exchange for confirming a nominee would be unprecedented and deeply troubling."

That issue, however, was rendered moot on Monday when the court rejected requests to consider the case, effectively approving the lower-court ruling.

Then on Tuesday, Hatch said that he will oppose Lee's nomination. "Those charged with enforcing the nation's laws must demonstrate a proper understanding of that law, and a determination to uphold its letter and spirit, Hatch said on the Senate floor.

"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."

In an interview, Daphne Kwok, the executive director of the OCA, said, "It is ironic that because of the Supreme Court decision not to hear the case, this turns out to be good for Bill's nomination, because they can't use this as an excuse not to vote for him."

In addition to affirmative action, partisan politics may have gotten the better of Lee. Until recently, Republicans had been mildly supportive of Lee or, at worst, not directly opposed to him.

Remembering the defeat of earlier Republican nominees for the same job, conservative columnist George Will and Washington lawyer Clint Bolick urged Republican politicians to take a stronger stand. They succeeded perhaps in part because internal tensions have developed lately among Republicans, with a hard-line faction arguing in favor of radical reductions in the role of the federal government without bipartisan compromises. Gingrich himself was threatened by insurgents within his party in what became a highly public failed attempt to unseat him as speaker.

In defense of Lee, Democrats responded with their own partisan reactions, with the Democrats in the House taking the lead.

Last Thursday afternoon, Rep. Patsy Mink, the chair of the Asian Pacific American Caucus, called a rally on short notice with her colleagues, including Waters and Xavier Becerra, chair of the Hispanic Caucus. The leaders of the three caucuses recently began coordinated efforts on issues of common concern--including political appointments--which have sometimes been a source of tension, with different groups pushing their own favorite candidates.

Becerra said, "I think it is intentional ... The Republicans are going after people of color."

On the lawn of the House, the leaders of the three minority caucuses were joined by other leading Democratic legislators, including House minority leader Richard Gephardt, D-Mo., Bob Matsui, D-Calif., and Nancy Pelosi, D-Calif.

In an unusual hour-long press conference, to which they returned after being interrupted for a vote on the House floor, the speakers condemned their Republican colleagues in the Senate.

Calling opponents of Lee "right wing," Gephardt said Lee was "for putting a human face on civil rights," not for quotas.

Matsui said Lee was "a mainstream lawyer" who wished to "protect the civil rights of ordinary Americans." He also suggested that the reaction against Lee was possibly part of a move to "keep people out of the political process." He concluded, "I have to say that if Bill Lee is turned down, what does that say to Asian Americans?"

Barney Frank, D-Mass., joked that when he read Gingrich's letter implying that people who resort "to underhanded methods to achieve an ideological goal" cannot hold public office, "I thought this was Newt's letter of resignation."

Some of the legislators, such as newly elected Brad Sherman, D-Cal., knew Lee personally. Sherman, who shared an office suite with Lee's wife who is also an attorney, said that Lee was "the kind of person you hope gets into government." Sherman said that the conduct of Republican senators, "makes you wonder who they think is president."

The White House has continued to support Lee, issuing a statement on Monday that he "is an excellent nominee with great qualifications, and someone who represents mainstream thinking in America."

After the Supreme Court refused to hear the Proposition 209 case, White House spokesman Mike McCurry said that President Clinton "'has very clearly stated, over and over again, that we need to keep [affirmative action] as a corrective tool to protect Americans who have suffered injustice, discrimination and even the residue of racism."

In regard to Lee, McCurry added, "Senators should not attempt to force their own policy prescriptions by way of controversies over nominations. But I suspect now that there shouldn't be any reason to use this [Prop. 209 case] as a lever to gain any different outcome of that nomination, and we would expect Mr. Lee's nomination to go forward and would hope that he would get speedy confirmation."

Last week, McCurry was even stronger in his choice of words, saying that Republican opposition to Lee was "race-based wedge politics."

Other than the Pan Asian American Chamber of Commerce, national APA groups, scheduled to participate in another rally this week, have aligned with Democrats to support Lee. When Lee was initially selected, the groups were ecstatic about the possibility that an Asian American would play a key civil-rights role. They were also pleased to find that the campaign-finance controversy had not prevented Asian Americans from receiving high-level jobs in the second Clinton administration. At the congressional caucus rally, the leaders of major African American and women's groups also attended to show solidarity.

More than a dozen Asian American groups were working on an advertisement to be placed in Roll Call, an influential Capitol Hill newspaper, asking senators to support Lee. They were also organizing an extensive e-mail campaign to encourage voters to contact their senators.

Matthew Finucane, the executive director of the Asian Pacific American Labor Alliance, said in a statement issued on Oct. 30: "the president showed his support for the Asian Pacific American community when he nominated [Lee]. It would be tragic if Republicans in the Senate did not show the same support for our community."

Michael Lin, the national president of the OCA, said in the same prepared statement, "We are appalled that Bill Lann Lee's nomination is being held up due to political games."

Executive Director Kwok added in the interview, "We need to let politicians know there will be a price to pay for opposing him."

The groups have insisted that Lee is being held to a double standard. They say that Lee's position on affirmative action is essentially the same as the Clinton administration, and once in office he would not be expected to deviate in any manner. Furthermore, they note, any appointee to a civil-rights job can be expected to more or less share the same view of affirmative-action programs as Clinton, namely the "mend it, don't end it" approach announced two years ago.

On another level, Lee has fared well. Even his critics concede that he is qualified and has had a distinguished career. His impeccable record has not been attacked for any personal problems, as other appointees in the recent past. The campaign-finance scandal, which reportedly hurt many other Asian American prospects for federal jobs, has not even been mentioned in connection with Lee.

Ironically, however, Lee's extensive practical experience has been turned to his disadvantage. Lani Guiner, the University of Pennsylvania law professor and friend of the Clintons, was assailed as a "quota queen" based on her scholarly work and deemed not pragmatic enough due to her academic background. Lee, in contrast, has almost no "paper trail" of publications, but has considerable hands-on experience as the lead trial attorney in many discrimination cases.

Asian American activists have also mentioned their fears that some APA leaders have failed to support Lee because he is associated with the NAACP, a group that is seen as representing primarily African American interests. They have also observed that the Lee vote is scheduled to take place in the Senate on the same day as an anti-affirmative-action bill will be debated in the House, a symbolic coincidence.

Whatever the outcome, the Lee nomination brings full circle two of the most significant episodes of recent APA experiences: the role of Asian Americans in the affirmative action debate and the increased visibility of Asian Americans following the campaign finance controversy.

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