In an ironic collision of symbolism and substance, the White House has left unfilled a key civil rights job for over a year while searching for a nominee that sends the right signal of racial diversity.
The delay in naming a chairman for the Equal Employment Opportunity Commission has confounded and divided civil rights activists, and raised questions about whether the White House has violated the spirit, if not the letter, of the fair employment laws by effectively limiting its search to Latino candidates.
Over the past year, the White House has floated the names of three prospective Latino nominees. But each has been shot down by civil rights groups who felt they lacked sufficient experience in fair-employment law.
The civil rights community and the Administration itself are now split around a pointed question: Is the symbolism of naming a Latino to the job more important than the impact of leaving leaderless the agency charged with enforcing laws prohibiting hiring discrimination on the basis of race, sex, age or physical disability?
Critics say the absence of a permanent chairman, a post traditionally held by a minority, has left the agency foundering as it struggles to dig out from a massive backlog of more than 80,000 pending discrimination complaints.
Latino advocacy groups are still pushing for a Latino appointment, though others in the civil rights community say the Administration can no longer afford to place such a premium on the nominee's ethnic background.
"My feeling is: Get someone in there, whether a he or she, whether Hispanic or African American or Asian American, no matter what their background is," said Sen. Paul Simon (D-Ill.), who chairs a Senate subcommittee that oversees the EEOC.
"The Administration in this case has been unduly absorbed with some kind of a balancing process in affirmative action and that seems to have hampered their acting rapidly," said William Taylor, vice-chairman of the Citizens' Commission on Civil Rights, a liberal advocacy group. "It is a misapprehension of the general goal of diversity to pinpoint particular positions for particular people."
Former President George Bush's appointee as EEOC chairman, Evan J. Kemp Jr., resigned in April, 1993. Since then, the commission has been under an acting chairman: Tony E. Gallegos, a Latino Democrat first appointed to the EEOC by President Ronald Reagan in 1982.
Clinton also hasn't chosen anyone to fill the commission's general counsel position, which has been vacant since last June, and only recently announced his intention to nominate candidates for two other vacant positions on the five-member board.
Sources said the appointment process was delayed while Clinton sought to assemble a diverse slate of candidates. One of the two nominees to the commission is disabled, the other is Asian.
Since Gallegos can only serve on the commission for a 60-day grace period after his term expires at the beginning of July, if none of Clinton's nominees receives Senate confirmation by Aug. 29, the commission will lack a quorum to conduct business.
Gallegos said that even with only three commissioners the agency is running at full steam. "Cases are moving through," he said. "Nothing is delayed." But civil rights groups said the commission has been drifting.
"It is just a leaderless group over there," said Pat Wright, director of government affairs at the Disability Rights Education and Defense Fund.
For conservatives all this stands as a parable on the perils of rigid insistence on racial diversity in hiring decisions.
"It's a question of sacrificing civil rights enforcement on the altar of (appointment) quotas, and it seems to me that's what is happening," said Linda Chavez, executive director of the U.S. Commission on Civil Rights under Reagan.
Publicly, White House officials say they have considered candidates of all races for chairman, and note that they have interviewed some white candidates.
"We have looked at a very broad spectrum of people for this position," said Veronica Biggins, who was named White House personnel director last January. "Our preference is that it would be an Hispanic, but in the same breath it is most important to have the right person in this position."
But privately, several White House sources acknowledge that the Administration has sought a Latino, virtually to the exclusion of candidates of any other background.
One official involved in the process said finding a Latino chairman became imperative after African Americans were named to the two other high-profile civil rights jobs: Deval Patrick as assistant attorney general for civil rights and Mary Frances Berry as chairwoman of the U.S. Commission on Civil Rights.
A second White House official concurred. "There was a general consensus on behalf of everyone who was involved . . . that if the civil rights division and some of the other significant positions (went to blacks), there had to be balance and it made sense to be an Hispanic chair" at EEOC.
If the Administration has, in fact, effectively narrowed the search to Latinos, it would technically violate the equal employment laws the commission enforces, several civil rights experts said. Under Title VII of the 1964 Civil Rights Act, which applies to the federal government, employers cannot designate specific positions for members of specific races.
"The law generally is you can consider race as a factor, but you cannot reserve a position by race," Taylor said.
As a practical matter, a disappointed candidate for the EEOC job probably could not turn to the courts because the Supreme Court has held that the President cannot be sued on matters relating to his official duties.
Each of the potential nominees the Administration has publicly floated have been Latino: Nelson Diaz, a Philadelphia judge who was later appointed general counsel at the Department of Housing and Urban Development; Ida Castro, a New York labor lawyer now at the Labor Department; and Gilbert F. Vasquez, a San Antonio lawyer.
But in each instance problems developed that convinced the White House to back off. The deciding factor each time appeared to be a lack of support from the major civil rights groups, a response that has created tensions between Latino advocacy organizations and civil rights groups with their roots primarily in the black community.
Latino groups largely shared the skepticism concerning Diaz and Vasquez, but they were annoyed at the reaction to Castro, an energetic attorney who spent weeks visiting civil rights groups to muster support only to find her prospects scuttled at the last minute.
"There had been this tacit understanding (between black and Latino groups) that 'let's not step on each other's toes here, let's divvy up the jobs,' " said one civil rights attorney familiar with the discussions. "There was a feeling among the Hispanic community that this (appointment) was their call alone . . . and the other civil rights groups had undermined Castro by damning her with faint praise to the White House--and that was reneging on the deal."
With some civil rights advocates now quietly suggesting the time has come for the White House to broaden the search to other ethnic groups, Latino advocates are reacting angrily.
Beyond the symbolic concerns, Latinos want one of their own named to the job because they feel the agency historically has not focused on their concerns, said Charles Kamasaki, a vice president at the National Council of La Raza, a Latino advocacy group in Washington.
To select a non-Latino for the job now would mean the White House and other civil rights groups have effectively concluded that no Latino is qualified, Kamasaki said. "What they will have done is accept what employers have said about affirmative action for the past 20 years."
White House officials say that conclusion is simplistic because the job was turned down by several prominent Latinos, including Raul Yzaguirre of La Raza in Washington and Antonia Hernandez of the Mexican American Legal Defense and Education Fund in Los Angeles.
At this point, the White House appears eager to put the controversy to rest. But it will have to hurry to avoid a dubious achievement. Clinton is less than a month shy of the record set by Reagan when he left the agency without a permanent chairman for 14 1/2 months before Clarence Thomas, now a Supreme Court justice, was confirmed for the job in May, 1982.