Lee may be given a recess appointment - appointment of Bill Lann Lee as assistant attorney general

Black Issues in Higher Education, Nov 27, 1997 by Charles Dervarics

Despite Senate Republican opposition, Bill Lann Lee may still become assistant attorney general in charge of civil rights, if only on a temporary basis.

The Clinton administration is considering a recess appointment for Lee, which means he could serve for at least one year and possibly two depending on the timing of the appointment, experts say. Under the U.S. Constitution, presidents can make such appointments when Congress is in recess for an extended period of time.

The House and Senate adjourned in mid-November and will not return until late January.

"It's up to Bill Lee if he wants to pursue it," one civil rights advocate said of the recess appointment. If the president appoints Lee before Jan. 1, he likely would serve only until the end of 1998, said a congressional aide who specializes in legal issues.

A presidential appointment during a recess next year conceivably could keep Lee in the job through 1999, though the issue would require some legal review, he said. Recess appointments are rare because they often anger the Senate, whose job is to pass judgment on hundreds of judicial and executive nominations each year.

Meanwhile, civil-rights groups said Senate Republicans erred in rejecting Lee's nomination to head the U.S. Justice Department's civil rights division.

"The Senate committed a grave injustice by not confirming Bill Lann Lee," said a spokeswoman for the NAACP Legal Defense and Education Fund, where Lee served as Western regional director prior to his appointment.

The Senate Judiciary Committee had planned to reject Lee's nomination in mid-November, effectively denying the full Senate a chance to vote for or against confirmation. Senate Democrats then invoked a motion to prevent a committee vote in hopes of bringing the nomination back next year.

Controversy about California's Proposition 209 and efforts to roll back affirmative action in higher education are two reasons Senate Republicans rallied against President Bill Clinton's nominee.

"The assistant attorney general must be America's civil rights law enforcer, not the civil rights ombudsman for the political left," said Sen. Orrin Hatch (R-Utah), chairman of the Senate Judiciary Committee.

Hatch specifically criticized Lee for making a complaint to the U.S. Education Department about the University of California's efforts to eliminate affirmative action in admissions. His opposition to the nominee triggered a war of words with the White House about what Republicans wanted in exchange for giving their support to Lee.

For his part, Hatch said on November 4 that he offered the administration an "olive branch" on the nomination: give up opposition to Proposition 209 to help gain support for Lee. The only concession from the administration was that Lee offered to recuse himself from administration deliberations on Proposition 209, according to Hatch.

The Clinton administration earlier this year filed a brief supporting efforts to declare Proposition 209 unconstitutional, although the U.S. Supreme Court recently said it will not review the California ballot initiative.

Lee received a confirmation hearing from Hatch's panel late last month, and the nominee drew strong endorsements both from civil rights supporters and some of his one-time legal opponents on affirmative action. But after support all but vanished from Republicans on the committee, Senate Democrats delayed a committee vote on Lee's nomination earlier this month. At that time, they sought a second public hearing on Lee to discuss the nominee's public character, but Hatch rejected the idea.

"Mr Lee's integrity is not an issue in the committee's consideration of this nominee," Hatch wrote.

The civil rights job at the Justice Department has been open nearly a year, since the resignation of Deval Patrick last winter.

The Lee nomination was one of two hot-button civil rights issues in Congress during early November. On the other side of Capitol Hill, affirmative action supporters won a victory when the House Judiciary Committee failed to act on a bill to roll back such programs.

At issue was the Civil Rights Act of 1997, legislation proposed by Rep. Charles Canady (R-Fla.), which would ban the federal government from using race and gender considerations in hiring, contracting, and other federal programs. The bill has ninety-five House co-sponsors and cleared a Judiciary subcommittee, chaired by Canady, earlier this year.

But Republicans could not muster enough support to hold a vote at a full Judiciary Committee meeting November 6. Democrats and a small cadre of Republicans led by Rep. George Gekas (R-Pa.) proposed to table the legislation without a vote, and the motion passed by a narrow margin.

Canady blasted the inaction, saying, "The American people know that you cannot end discrimination by practicing discrimination. Sooner or later, the politicians in Washington will get the message."

But congressional Democrats were ecstatic with the decision, and civil rights groups gathered at the House hearing room for a possible vote broke into a cheer after members voted to table the bill.