[Congressional Record Volume 143, Number 153 (Wednesday, November 5, 1997)]
[Senate]
[Pages S11754-S11756]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




NOMINATION OF BILL LANN LEE TO BE ASSISTANT ATTORNEY GENERAL FOR CIVIL 
                                 RIGHTS

  Mr. THURMOND. Mr. President, I rise today to express my opposition to 
the nomination of Bill Lann Lee to be Assistant Attorney General for 
Civil Rights. I have reached this conclusion only after much thought 
and careful consideration. But I am certain that this is the right 
course. I commend Senator Hatch for his leadership and the excellent 
statement he delivered on the floor yesterday in this regard.
  When the possibility that Mr. Lee would be nominated for this 
position was first brought to my attention, I was impressed by what I 
heard. Mr. Lee was born to a hard-working, determined family of Chinese 
immigrants. His success at Yale and Columbia University Law School 
reflects that he inherited a commitment to succeed. I was also assured 
then, and continue to believe, that he is a man of character, honesty, 
and intellect. I relayed that impression to the White House.
  After Mr. Lee was nominated, I met with him and made clear that I had 
an open mind regarding his nomination. I told him that his positions on 
the issues would be critical, and that the committee was eager to hear 
his answers to questions.
  Before the hearing, some expressed alarm at many of the cases and 
positions that Mr. Lee had taken during his leadership in activist 
civil rights organizations. They were concerned about whether he would 
use his job and army of attorneys in the Justice Department to advance 
the same agenda he had pursued for the Legal Defense Fund. I understood 
this. But, at the same time, I have known since my days as a small town 
lawyer that a good attorney is a strong advocate for his client, 
regardless of whether he agrees with everything the client wants.
  Mr. Lee had an obligation to convince us at the hearing that he could 
transfer from the role of creative advocate for activist civil rights 
organizations to neutral and objective enforcer of the Nation's civil 
rights laws. This he failed to do. He would not give any cases or 
positions that he had brought on behalf of the Legal Defense Fund that 
he would not bring as head of the Civil Rights Division. He would not 
cite any difference between himself and the last civil rights chief, 
Deval Patrick, who was an unwavering proponent of the civil rights 
agenda of the left. Unfortunately, it became clear during the hearing 
that Mr. Lee's advocacy is guided by a dedicated personal commitment to 
the positions he has advanced over the years.
  Mr. Lee started by proclaiming that proposition 209 is 
unconstitutional. In proposition 209, the people of California voted to 
end all government preferences and set-asides on the basis of race, 
sex, or national origin. Then, with the active support of Mr. Lee and 
his organization, a Federal judge blocked the will of the people, 
saying the referendum was unconstitutional. The claim was that 
proposition 209 violated the 14th amendment, when in reality it 
mirrored the 14th amendment. Far from violating the Constitution, 
proposition 209 essentially states what the Constitution requires. The 
Ninth Circuit recognized this simple fact on appeal. Regardless, Mr. 
Lee is steadfast in his view that it was unconstitutional for the 
people of California to bring preferences to an end.
  Another disturbing but related issue involves judicial taxation. I 
firmly believe that Federal judges do not have the Constitutional power 
to raises taxes or order legislative authorities to raise taxes. It is 
a simple issue of separation of powers. Taxes are a matter for the 
legislative branch, the branch that is responsive to the people. The 
organization for which Mr. Lee works was instrumental in the decision 
of a Federal judge in Missouri to order that taxes be raised. Mr. Lee 
would not disavow this approach. Although he stated that if confirmed 
he would not ask

[[Page S11755]]

a Federal judge to order a legislative authority to raise taxes in the 
school desegregation context, he refused to rule out such a request in 
other civil rights contexts. He fails to recognize that fundamental 
principles of separation of powers prohibit judicial taxation.
  Mr. Lee's views on proposition 209 and judicial taxation represent 
support for a dangerous tactic of legal activists. They use the 
unelected, unaccountable Federal judiciary to accomplish what they 
cannot achieve through the democratic process. When they lost at the 
ballot box on proposition 209, they got a lone Federal judge to block 
the will of the people. When they wanted to implement their lavish 
desegregation experiment in Missouri, they got a lone Federal judge to 
raise taxes. They have pursued their solutions in utter disregard of 
the people.
  Today, Mr. Lee and his allies are failing to find support even in the 
courts. The Federal judiciary, led by the Supreme Court, is fashioning 
a civil rights jurisprudence based on the merit of the individual 
rather than preferential treatment for groups. Mr. Lee has fought 
against and continues to be uneasy with this constructive, solidifying 
law. It is clear that he would use his position and arsenal of 
attorneys to dilute or circumvent this progress toward ending 
preferential treatment.
  An excellent example of the failed approach of the past is forced 
busing of school children. At the hearing, Mr. Lee continued to express 
support for the use of forced busing in some circumstances, even in the 
1990's. He would not back away from his unbelievable assertion in a 
Supreme Court brief that ``the term `forced busing' is a misnomer.''
  Mr. President, many of us in the Senate are concerned about judicial 
activism on the bench, and we have every reason to be. We must keep in 
mind that a judicial activist decision starts with a proposal by a 
legal activist. We cannot and should not stop private organizations 
from advocating legal activism if they wish. However, we have a duty to 
reject legal activism as the guiding principle for our Nation's top 
civil rights law enforcement officer.
  I must strongly oppose this nomination.
  I yield the floor.
  The PRESIDING OFFICER. The Chair recognizes the distinguished Senator 
from Kentucky.
  Mr. McCONNELL. Mr. President, I rise today to express my deep 
dissatisfaction with the misguided views of President Clinton's nominee 
for Assistant Attorney General for Civil Rights.
  As many of my colleagues have made clear, Mr. Lee is a fine man, with 
accomplished legal credentials. His story of hard work and success is 
truly inspiring. But, Mr. President, the position of Assistant Attorney 
General for Civil Rights should not be filled based on an inspiring 
story, but rather, on a nominee's commitment to the bedrock principle 
that every American should be seen as equal in the eyes of the law.
  The nomination of Bill Lann Lee is in serious peril, and for good 
reason. Mr. Lee has a long, well-documented, and disturbing allegiance 
to the policy of government-mandated racial preferences. In spite of 
the Constitution and recent court decisions, Mr. Lee continues to 
assert that government jobs and contracts should be handed out based on 
the immutable traits of race and gender.
  Mr. Lee's views, however, go one giant leap beyond simply allowing 
racial preferences. Mr. lee has argued that the Constitution, in fact, 
requires racial preferences. Let me restate that. Bill Lann Lee has 
filed papers in Federal court asserting that the very Constitution 
which prohibits discrimination based on race and gender, in fact, 
requires the government to engage in discrimination based on race and 
gender.
  As absurd as this theory sounds that is what Bill Lann Lee argued in 
court briefs this year as he fought the will of the California voters 
in proposition 209. Thankfully, the Ninth Circuit Court of Appeals 
unanimously rejected the Lee theory. In simple, straightforward 
language, the court explained, ``the 14th Amendment, lest we lose sight 
of the forest for the trees, does not require what it barely permits.''
  And, as expected, the Supreme Court this week refused to validate the 
Lee theory and allowed the ninth circuit ruling to stand.


            the constitution does not require discrimination

  Throughout Mr. Lee's lifetime of advocacy, he has consistently 
overlooked one profound point, that is: Every time the government hands 
out a job or a contract to one person based on race or gender, it 
discriminates against another person based on race or gender.
  Mr. Michael Cornelius recently spoke poignantly to this point before 
the Constitution Subcommittee in the House of Representatives. He 
explained that his firm was denied a Government contract under ISTEA, 
even though his bid was $3 million lower than the nearest competitor. 
Mr. Cornelius' bid was rejected because the Government felt that the 
bid did not use enough minority or women-owned subcontractors.
  If you think that's bad, think about this: The Cornelius bid proposed 
to subcontract 26.5 percent of the work to firms owned by minorities 
and women. Yet, 26.5 percent was not enough in the world of so-called 
goals and timetables that Mr. Lee thinks the Constitution requires. Mr. 
Lee's goals and timetables are more appropriately called quotas and 
set-asides.
  You see, the Government took the contract away from Mr. Cornelius and 
awarded it to a bidder that proposed to contract 29 percent of the work 
to minority firms, and who charged the Government $3 million more than 
Mr. Cornelius.
  And, unfortunately, it doesn't end there. When the Government denied 
the job to Mr. Cornelius, it also denied the job to all of Mr. 
Cornelius' employees--over 80 percent of whom are minorities.
  So the Government, in its infinite wisdom, not only committed 
discrimination, but it paid $3 million in the process.
  I have filed an amendment to ISTEA that would remove this pernicious 
practice of awarding jobs and contracts based on skin color. Racial 
preferences are discriminatory, unfair, and unconstitutional. This 
principle is being reaffirmed courtroom by courtroom, State by State 
all across this country.
  But what does Mr. Lee think? Does he think the Constitution bars 
these kind of racial preferences? Absolutely not. So, I think it's fair 
to say that Mr. Lee's message to Mr. Cornelius is: ``Sorry about the 
discrimination against you, your family, and your employees. But, the 
Constitution requires it.''


             joining the clinton corps of social engineers

  The Clinton administration is all too eager to add Mr. Lee to its 
army corps of social engineers. Civil rights lawyers like Norma Cantu 
and Judith Winston undoubtedly relish the opportunity to add a lawyer 
with the misguided views of Bill Lann Lee to their brigade.
  Cantu and Winston, have helped lead the administration's battle 
against the courts and the Constitution. These lawyers, like Lee, have 
become skilled at establishing racial preferences behind the scenes 
through the jungle of Federal regulations and by way of the quiet 
camouflage of consent decrees.
  Cantu and Winston, recently launched a politically motivated 
investigation of the University of California graduate schools. As you 
may remember, Mr. President, in 1995, the regents of the University of 
California voted to end heavy-handed racial preference policies in 
student admissions, opting instead to base admissions solely on merit. 
These policies had for years resulted in a two-tiered admissions 
system, by which students of preferred racial and ethnic backgrounds 
were admitted with inferior qualifications than those of other racial 
and ethnic backgrounds.
  The regents recognized that this system embodied unconscionable 
discrimination which hurt not only those better-qualified applicants 
that were denied admission, including many Asian-American applicants 
who suffered severely under the preference policy, but it also hurt 
minority students who faced stigmatization as racial preference 
admittees.
  Now, as a result of the regents' decision, the University of 
California will no longer punish or reward applicants based on their 
race, but will rely on widely accepted, long-standing admissions 
criteria that focus on individual achievements, such as grades, test 
scores, and life accomplishments.

[[Page S11756]]

  Most Americans would applaud the regents for their prudent decision. 
But not Cantu and Winston. They are using their civil rights positions 
at the Department of Education to launch a Federal taxpayer-funded 
investigation to determine whether schools are discriminating by 
refusing to discriminate.
  The Los Angeles Times reported that Winston has asserted that:

       The University of California may have violated federal 
     civil rights law by dropping its affirmative action rules and 
     relying on test scores and grades as a basis for selecting 
     new students.

  This baseless investigation turns the principle of nondiscrimination 
on its head by threatening schools that use race-blind admissions 
policies and objective measures of merit. This investigation has 
provoked criticism even from those who typically defend race 
preferences. For example, University of Texas Law School professor 
Samuel Issacharoff, recently stated that ``[Ms. Winston] is voicing a 
theory that does not have support in the courts.'' Professor 
Issacharoff went on to explain that he was ``not aware of any legal 
support for the idea that would say the Harvard Law School, for 
example, cannot accept only the cream of the crop if doing so would 
have an impact on a minority group.''
  And in an editorial, the Sacramento Bee, a newspaper I might add that 
supports race preferences, referred to the administration's legal 
theory as ``an Orwellian misreading of the law.'' ``Equally 
important,'' the Bee concluded, ``the investigation is an abuse of 
federal power, designed to punish California and its citizens for [its] 
decision on affirmative action. * * *''
  So where did this investigation originate? Who could muster the 
contorted legal arguments to justify these threats and these 
expenditures of taxpayer dollars?
  Were these complaints filed by a student who alleged discrimination? 
A student organization? A family in California? No. I'll tell you who 
filed the complaint that launched this Federal investigation: Bill Lann 
Lee, as head of the Western Office of the NAACP Legal Defense and 
Education Fund.
  And, it does not end there. The Labor Department has also joined the 
pile-on to punish California for its decision to push for a colorblind 
society. DOL is investigating the charge that U.C. graduate schools are 
committing employment discrimination against the minorities who are not 
accepted into U.C. graduate schools, and thus, not able to apply for 
campus jobs.
  And where did this complaint originate? Again, it wasn't a student. 
It was Bill Lann Lee and his legal defense fund filing another 
complaint launching yet another federally funded investigation of race-
neutral policies based on yet another legal theory that is outside the 
boundaries of both the Commission and the courts.
  And, what is the administration's threatened sanction against the 
University of California for its race-neutral approach? The termination 
of hundreds of thousands of dollars in Federal funds.
  And what does this pattern and practice tell us that Mr. Lee will do 
with an army of lawyers at the Justice Department? He will bring down 
the power of the Federal Government upon State and local governments 
that refuse to mandate racial preferences. This, Mr. President, is 
simply unacceptable.
  Mr. Lee's views are neither moderate nor mainstream. And, his views 
are not isolated incidents. They are not glib, off-handed statements 
made during his youth. They are not dusty law review articles written 
by a starry-eyed graduate student. And, they are not creative theories 
espoused in the ivory tower of academia.
  Mr. Lee's well-documented views are the voice of a man who exhibits 
an alarming allegiance to racial preferences and a disturbing disregard 
for the Constitution. This voice--this man--should not be entrusted 
with the noble task of upholding the equal protection clause of the 
U.S. Constitution.
  Several days ago, I placed a hold on Mr. Lee's nomination, and today, 
I respectfully announce my formal opposition to his nomination. We must 
end the divisive practice of awarding Government jobs and contracts and 
opportunities based on the immutable trait of skin color and ethnicity. 
Respect for our Constitution, our courts, and--most importantly--our 
individual citizens, demands no less.
  Mr. THURMOND. Mr. President, I wish to commend the able Senator from 
Kentucky for the excellent treatise he just made.
  Mr. AKAKA addressed the Chair.
  The PRESIDING OFFICER. The Senator from Hawaii is recognized.
  Mr. AKAKA. I thank the Chair.
  (The remarks of Mr. Akaka pertaining to the introduction of S. 1376 
are located in today's Record under ``Statements on Introduced Bills 
and Joint Resolutions.'')
  Mr. AKAKA. I yield the floor.
  Mr. SESSIONS addressed the Chair.
  The PRESIDING OFFICER (Mr. Abraham). The Senator from Alabama.

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