Appointments Are the President’s Game

President Clinton’s nominee to echo his civil rights policy as head of the Justice Department’s civil rights division, Bill Lann Lee, deserves Senate confirmation. To do less would be heresy to the constitutional vision of a single top executive and the idea that the confirmation process should be confined to scrutiny for cronyism, competence and corruption.

Republican senators seeking to scuttle the Lee nomination because they are antagonistic to Clinton’s civil rights agenda cannot claim exoneration by pointing to equally misguided Senate precedents during the Reagan administration.

The gist of the Senate Republican opposition to Lee is his enthusiastic singing of President Clinton’s affirmative action libretto. Like the president, Lee has sought to limit the impact of recent rulings of the U.S. Supreme Court that invalidate racial and gender preferences. That attempt has been no more successful than Custer’s at the Battle of Little Bighorn, but is not for that reason illegitimate.

Civil rights law since the landmark desegregation decision in Brown vs. Board of Education (1954) has twice come full circle. From Brown through 1968, the prevailing civil rights mantra was color-blindness. The Supreme Court held unconstitutional ballots identifying the race of candidates because of their encouragement of racial bloc voting, and liberal champions of the watershed 1964 Civil Rights Act like Sen. Hubert Humphrey shouted from the rooftops that both whites and blacks would be guaranteed equality of treatment.

The Nixon administration in 1969 initiated a revolutionary transformation of civil rights law. Nixon’s civil rights appointees pioneered the use of racial, ethnic and gender preferences in government programs, beginning with the construction industry. The preferences were legally dubious when inaugurated, but ultimately commanded the blessing of a fickle Supreme Court. Its rulings in the 1970s broadly sanctioned employment, contracting and school admissions preferences for minorities and women.

President Reagan was elected in 1980 vowing to assail these preferences, and he appointed William Bradford Reynolds as assistant attorney general for civil rights to accomplish that mission. Reynolds fought with bravado but largely without success to elicit Supreme Court condemnation of affirmative action that celebrated racial preferences as a type of group reparation for historical wrongs. He succeeded magnificently, however, in provoking a national reevaluation of the fairness and morality of preferences that has been crowned with Supreme Court victories in the 1990s.

Reynolds staked out legal positions during his tenure that were contrary to prevailing civil rights precedents in recognition that the law is not fixed like the North Star but evolves with changing public orthodoxies and prejudices. He paid a steep price for his historically vindicated trailblazing; Senate Democrats derailed his nomination as associate attorney general in 1985 because they were angry over his shooting at affirmative action in accord with Reagan’s order of battle.

A president is entitled to lieutenants unswervingly devoted to advancing his policies through litigation, even if prevailing precedents make the chances of success bleak. That is why since 1789 it has been generally understood that Congress is powerless to handcuff the president in removing high executive officials who have lost his confidence, an understanding robustly approved by the Supreme Court in Myers vs. U.S. (1926). Denying Senate confirmation of a president’s nominees provoked by a disagreement over policies is a flagrant circumvention of Myers and political custom.