Putting Lee in Rights Post Seen as Risky Clinton Move

To install Bill Lann Lee as America’s chief civil rights enforcer, President Clinton is on the verge of employing a risky evasive maneuver to get around the Senate confirmation process.

Late Sunday, White House strategists were debating two strategies for sidestepping GOP opposition to confirming Lee as assistant attorney general for civil rights. Senate Republicans blocked a confirmation vote last month, citing the Los Angeles attorney’s vigorous support of affirmative action.

One choice is for Clinton to invoke his constitutional authority to make a recess appointment while Congress is out of session, a move that would allow Lee to hold the civil rights job through 1998 without confirmation.

The second is for the president to designate Lee as acting civil rights chief, a less-confrontational move that would let him hold the job for the duration of the administration, but in a diminished capacity.

Some officials seemed to be leaning toward an acting appointment because it could leave the door open to a formal confirmation in 1998. Others were holding out for a recess appointment because it would allow Lee to act with more authority.

“One way or another, we’re going to push to see that he’s confirmed,” said a White House aide familiar with the situation. Clinton is expected to make a decision as early as today.

Yet while presidents dating back to George Washington have wielded their power to make recess appointments, rarely has it looked so provocative, according to scholars.

The conflict over Lee, a veteran NAACP attorney, is connected to a much larger political struggle in which many White House nominees are languishing in Congress and routine confirmation procedures have become bitter ideological contests.

Senate Republicans have warned that if Clinton makes a recess appointment, they are prepared to retaliate on other White House nominees, program funding and Democratic legislation. As it is, 42 of Clinton’s judicial nominees are pending in the Senate Judiciary Committee or on the floor, by one recent count, and the backlog is growing.

A recess appointment, said Michael L. Mezey, a political scientist at DePaul University in Chicago, would be “a high-stakes gamble” for Clinton.

“He’s had conflict with the Senate already,” Mezey said. “This is going to exacerbate it.”

Interviewed Sunday, Senate Judiciary Committee Chairman Orrin G. Hatch (R-Utah) said a recess appointment would be seen as “a finger in the eye of the Senate.”

“I think you’d find there would be an awful lot of repercussions, . . . a slowdown on a lot of things,” Hatch said on “Fox News Sunday.” The Senate would be less upset by an acting appointment, he added, “but that’s not going to please people either.”

The looming decision places unusual pressure on Clinton. Republicans have criticized Lee, both for the legal strategies he has used to promote workplace diversity and his commitment to affirmative action policies. Clinton, who has been viewed as abandoning nominees if they run into trouble, has expressed strong support for Lee--and for affirmative action.

“I think people want to see the president stand up for someone for once,” said a Democratic staffer on the Senate Judiciary Committee.

The dispute arises from a provision in the Constitution that is widely viewed as archaic in a time when Congress meets for much of the year.

Recess appointments made sense when legislators came to Washington infrequently and stayed only briefly. Still, presidents continue to make them, particularly “when there is hostility between the president and the Senate,” noted Ross K. Baker, a presidential scholar at Rutgers University in New Brunswick, N.J.

Ronald Reagan invoked the authority 243 times in the course of two terms, according to the Congressional Research Service. George Bush made 78 such appointments. Both Republican presidents tangled with Democrats in Congress over their recess appointments to the Legal Services Corp.

Clinton had made 37 recess appointments through September, with little fanfare. But the Lee case looms as something very different: Rarely has a president employed the power after a Senate committee has blocked a nominee.

Clinton’s use of the authority now “would politicize the recess appointment power in a way that it hasn’t previously been used,” said G. Calvin Mackenzie, a presidential scholar at Colby College in Waterville, Maine.

As Mackenzie and some others see it, the controversy over Lee’s views on affirmative action is just the latest turn in a larger fight between the White House and Congress that has been escalating since the days when Democrats controlled the Senate in the 1980s.

Ten years ago, the cause celebre was Robert H. Bork, Reagan’s nominee for the Supreme Court. Liberal Democrats, appalled at Bork’s conservative judicial philosophy, mounted a scorched-earth attack on the legal scholar. Bork’s defeat, by a vote of 58 to 42, signaled a new era in which legislators were increasingly willing to discard a president’s nominee on ideological grounds.

Two years later, the Senate Judiciary Committee killed the prospects for William Lucas, Bush’s conservative nominee for the same civil rights post, without allowing the full Senate to go on record.

When Lucas’ supporters urged the president to answer back with a recess appointment, Bush refrained, heeding the warning from then-Senate Majority Leader George J. Mitchell (D-Maine) that it “would be a very unwise course of action.”

Today, it is Republicans who control the Senate, with a Democrat in the White House. And dust-ups over appointments have become increasingly common, sometimes involving a single member who chooses to stand in the way. Just recently, for example, Senate Foreign Relations Committee Chairman Jesse Helms (R-N.C.) flatly refused to consider Clinton’s choice of former Massachusetts Gov. William F. Weld, a Republican, to become ambassador to Mexico.

“It just turns the Constitution on its head,” complained Mackenzie. “They’ve just decided that, for whatever reason, if an individual senator doesn’t want a person confirmed, they’re going to stand by that. It’s a whole new ballgame.”

Republicans have argued that they have legitimate cause for concern about Lee, whose legal tactics have convinced some of his critics that he has pushed the limits of the law in pressuring employers to pursue racial preferences.

Given the pace of confirming judges, one Democrat on the Judiciary Committee suggested that GOP warnings about a retaliatory slowdown amount to a “kind of a hollow threat.” Others take GOP threats seriously and view a recess appointment as an inappropriate flouting of confirmation procedures.

Yet for all the fuss, there may be an irony: If Clinton installs Lee in the post against the will of GOP leaders, Republicans can limit his effectiveness through strict and active oversight of the civil rights division.

“Congress can really make their lives miserable,” Rutgers’ Baker said, suggesting that Lee’s appointment would lead to a “negligible” impact on public policy.

Times staff writer David G. Savage contributed to this story.