Clinton Avoids Repeating History in Lee Appointment

After Dwight D. Eisenhower was elected president in 1952, President Harry S. Truman told some aides, “He’ll sit right here and he’ll say, ‘Do this, do that!’ And nothing will happen. Poor Ike--it won’t be a bit like the Army. He’ll find it very frustrating.”

With mainly Democratic Congresses to deal with, Eisenhower did--as did Truman and every other president who had to share power with Congresses controlled by an opposing party.

President Bill Clinton understands the problem. Four of his first six years in office will have been in the shadow of a Republican Congress. He has done remarkably well, considering the strength and determination of his opposition. By shrewdly throwing the Republicans on the defensive, he has largely prevailed in his budget fights. In fact, he has achieved more with a GOP Congress in the last three years than he did with a Democratic Congress in his first two years.

In his battle with Senate Republicans over the appointment of Bill Lann Lee as assistant attorney general for civil rights, Clinton has shown the political effectiveness that has given him earlier victories against a Republican leadership primarily intent on holding Congress in 1998 and winning the White House in 2000.

GOP senators, led by Senate Majority Leader Trent Lott (R-Miss.) and Judiciary Committee Chairman Orrin G. Hatch (R-Utah), had threatened an all-out confrontation with the president if he defied their determination to bar Lee from the Justice Department post. Convinced that Lee is a proponent of affirmative-action quotas and might ignore recent court decisions limiting implementation of affirmative-action rules, GOP senators had drawn a line in the sand.

If the president gave Lee a recess appointment, the Republicans said they would block other Clinton appointments and legislative initiatives. But both Lott and Hatch signaled that if Lee was given an “acting” appointment, it would be less of an offense to the Senate and would give both sides room to negotiate.

There is more symbol than substance here, but Clinton seized on the opening to give Lee “acting” status, with the promise that he will present Lee’s nomination to the Senate again next year.

When it comes to political deference and respect, Clinton understood he could not afford to take the GOP threats lightly. A keen student of U.S. history, he knows what a frightful price past presidents have paid for defying Congress.

Republican attempts to pressure Atty. Gen. Janet Reno into appointing a special counsel to look into Clinton’s alleged violations of campaign-finance laws must have put the president in mind of impeachment proceedings against Andrew Johnson in 1867 and Richard M. Nixon in 1974. Although Johnson defied the post-Civil War Congress over a constitutionally questionable law giving it power to approve a president’s removal of officials as well as his appointment of them, the House passed a resolution of impeachment that forced a Senate trial. As much the product of Johnson’s bad relations with Congress as his violation of the Tenure of Office Act, the trial brought the inept Johnson to within one vote of losing his presidency.

Most congressional battles with presidents have not reached the extremes Johnson and Nixon brought upon themselves. But Clinton knows there have been plenty of instances when Congresses have made a president’s life miserable without impeaching or even threatening to impeach him.

Woodrow Wilson’s refusal to compromise with Senate demands for resolutions to the Versailles Treaty ending World War I allowed a Republican Senate, led by Foreign Relations Committee Chairman Henry Cabot Lodge, to block Wilson’s requests for adherence to the treaty and membership in the League of Nations. Wilson, believing these measures the crowning achievements of his eight-year term, left office a broken man.

Franklin D. Roosevelt’s unsuccessful efforts to force “court packing,” or expansion of Supreme Court membership, through Congress in 1937, went far to make his second term a failure in domestic affairs. If Roosevelt had had only two terms, he would never be remembered as one of the nation’s three greatest presidents, as he now is. His losing fight with Congress over the Supreme Court would have seriously undermined his historical reputation.

Truman fared little better with Congress. Though he was able to use the GOP-controlled 80th “do nothing, good for nothing” Congress to his advantage in his successful 1948 election campaign, he got nothing in the way of major legislation from the Republicans in 1947-1949. To the contrary, they passed the anti-labor Taft-Hartley law over veto. And even with his stunning victory in 1948, uncooperative Congresses between 1949 and 1953 buried his Fair Deal proposals for civil rights, federal aid to education and medical insurance for the elderly.

Eisenhower, a great conciliator, resorted to bipartisanship to win backing from Democratic congresses for his foreign-policy initiatives. And in domestic affairs he repeatedly bent to congressional demands on social programs, including the creation of a department of health, education and welfare, to keep peace with his Democratic opposition.

President John F. Kennedy, for all his charisma and rising popularity as he moved toward a reelection campaign in 1964, scored no major victories on much of the same legislation Truman had struggled to enact. When Kennedy died in November 1963, civil rights, federal aid to education, Medicare and a tax cut to boost the economy were all tied up in an uncooperative Congress.

Even President Lyndon B. Johnson, the most masterful of our presidential legislators, found himself stymied in the last months of his term. He could not get an open-housing civil rights bill passed until after Martin Luther King Jr. had been assassinated, nor a 10% tax surcharge until the threat of a domestic and international economic collapse forced Congress into action. Johnson’s failed effort to win Senate confirmation of Abe Fortas as chief justice of the U.S. Supreme Court in 1968 gave the president a painful lesson in lame-duck politics.

Well before he resigned in the face of House action moving toward impeachment for his Watergate cover-up and other “high crimes and misdemeanors,” Nixon had suffered humiliating defeats at the hands of a Democratic Congress. His Family Assistance Plan, aimed at reforming the welfare system, and a bill expanding medical insurance to the tens of millions of uninsured or under-insured Americans below age 65 could not pass the tests of partisan politics.

Nixon’s unsuccessful Supreme Court nominations of first, South Carolina federal Judge Clement F. Haynsworth, and then, Florida federal Court of Appeals Judge G. Harrold Carswell, marked the first time since Grover Cleveland in the 1880s that a president had two consecutive Supreme Court nominees blocked by the Senate. Nixon rationalized his humiliation by complaining that both men were victims of bias against Southerners and predicting that men with similar views would one day sit on the high court. When Clinton trimmed sail with a GOP Senate over the Lee appointment, he might have remembered the political defeats suffered by earlier presidents too proud or too self-righteous to accommodate opposition sentiment. With three years left on his term and talk already of his lame-duck status and loss of energy to get anything important done, he needs to be more pragmatic and more sensitive to congressional crosscurrents than ever.

Making Lee an “acting” as opposed to a “recess” appointment may seem like another in a long line of back-downs from confrontations with political opponents. But, in this instance, it is the right action at the right time. It gives Clinton the possibility not only of getting Lee confirmed in 1998 but also of persuading Congress to act on legislative initiatives he wants to bring forward on taxes, Medicare, education and race relations in the last three years of his term. Small political sacrifices for larger legislative gains has always made good sense in a system where division of power is the rule.