Fight Over Civil Rights Nominee Is Latest Battle in Capital’s ‘Tong War’

Clint Bolick began his campaign against Bill Lann Lee, the Los Angeles lawyer who is President Clinton’s nominee for the Justice Department’s top civil rights job, right after Labor Day. Bolick, the litigation director at the conservative Institute for Justice, published a detailed report criticizing Lee’s views and set out to recruit Republicans on the Senate Judiciary Committee to resist the nomination.

His first convert was freshman Sen. Jeff Sessions (R-Ala.), whose own nomination to the federal courts was rejected by the Judiciary Committee a decade ago. Bolick secured another breakthrough when Sen. Strom Thurmond (R-S.C.) reversed an earlier endorsement of Lee after reviewing his report. Then George Will, using Bolick’s research, wrote a column opposing Lee. That attracted other wavering Republicans.

Finally, on Tuesday, Sen. Orrin G. Hatch (R-Utah), the committee chairman, delivered a ringing statement of opposition. Hatch’s communique left the nomination hanging by a thread; Democrats on Thursday forced the panel to put off action until at least this week (and possibly even next year) when it became clear they didn’t have the votes to confirm Lee. Even with the delay, Lee now faces long odds.

To some extent, the resistance to Lee reflects the heightened partisan tension in Washington this fall. But it is more aptly understood as an escalation of the ideological struggle between the civil rights establishment that built the modern structure of affirmative action and a conservative counter-establishment intent on dismantling it.

“The [Lee] fight is not really about Clinton,” said one administration official, “but an ongoing tong war in Washington that is going to go on long after he is gone.”

It is true that Clinton didn’t start this fight. But neither has he done anything to end it. Instead, by failing to break out of the old arguments, he’s assured their persistence--and denied himself the opportunity to build a new consensus.

The lack of that consensus is written in the contentious history of the job Lee is seeking. Winning a president’s nomination as assistant attorney general for civil rights is less like being summoned to the head of the class than being told to go stand in an intersection. The position has a daunting mortality rate. Unless Lee somehow pulls through, three of the past five nominees chosen for it will have failed to cross the road to Senate confirmation.

The bloodshed traces back to 1989, when liberal civil rights groups and their congressional allies blocked President Bush’s nomination of William Lucas, an African American Republican, to the job. Under Clinton, it’s been the conservatives on the attack. In succession, Clinton has tried to place three alumni of the NAACP Legal Defense Fund in the job--and Bolick has led the fight against each one.

In 1993, with support crumbling, Clinton was forced to withdraw his nomination of C. Lani Guinier--who Bolick had flamboyantly dubbed a “quota queen” for her support of racial preferences. Then, in 1994, Clinton won a round when the Senate approved Deval Patrick without much controversy.

This time, the industrious Bolick struck early with his report, which focused on Lee’s efforts to overturn Proposition 209, the California initiative barring preferences in state and local programs, his support for school busing and his efforts to secure numerical hiring goals for minorities in cases he’s litigated. Lee’s supporters say that record amounts to nothing more than aggressively applying existing law. But Bolick’s research--and Lee’s own responses at his confirmation hearings--led many Republicans to suspect that he would resist the recent Supreme Court cases narrowing the acceptable uses of racial preferences. That put him on the precipice.

In some ways, the resistance to Lee is even more revealing than the uprising against Guinier. She was a theorist whose intellectual speculations placed her at the cutting edge, even among civil rights activists. Lee is a working attorney undeniably in the mainstream of that community. Lee’s problems suggest that Clinton may not be able to satisfy the Republican Senate so long as he insists on choosing a nominee who meets all the demands of the civil rights community itself.

Faced with the rising conservative challenge, the civil rights groups have responded by intensifying their defense of the existing affirmative action regime. Lee himself embodies the tendency. From his post as director of the legal defense fund’s Western office, he embraced the somewhat Orwellian idea that it was unconstitutional for California not to provide racial preferences, and the even more dizzying concept that the University of California is discriminating against minorities by basing its admission decisions on test scores and grades. Those positions proved heavy baggage in the Senate.

If Lee falls, it will be a personal disappointment for a talented and dedicated lawyer. But it might ring a valuable alarm for Clinton. On most domestic issues, he has tried to reformulate the traditional liberal-conservative debate. Yet on affirmative action, he’s done little to change the argument.

After a celebrated review of federal affirmative action policies, Clinton has actually presided over glancingly little change. And he’s elevated constituency politics over innovation by relying on alumni of the liberal groups not only for the Justice Department job but most of the key civil rights positions in his administration.

Lee’s travails show the continuing cost of that complacency. In the political arena, affirmative action’s supporters and opponents remain closely matched: Last week’s vote in Houston to retain a city set-aside program suggests that there won’t be a stampede toward repeal at the ballot box. But the trend line in the legal arena points clearly toward retrenchment: The federal courts seem virtually certain to continue narrowing the permissible use of racial preferences.

Clinton could challenge his allies to face that difficult reality and begin formulating alternative means for expanding opportunity. Instead, he’s indulged the illusion that the status quo can be indefinitely preserved. That’s bought him peace inside his party. But it’s also let the tong wars rage on--with his side taking most of the casualties, as Bill Lee may soon ruefully attest.