[Congressional Record Volume 143, Number 153 (Wednesday, November 5, 1997)]
[Senate]
[Pages S11756-S11758]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                      NOMINATION OF BILL LANN LEE

  Mr. SESSIONS. Mr. President, the position of Assistant Attorney 
General for Civil Rights is important to our Nation. The most important 
reason is what it signals about the direction the President plans to 
take on key civil rights issues of the day.
  In my opinion, this Nation is moving in the right direction on civil 
rights. We have gone through a turbulent period where legal segregation 
has now been ended, and we are now ending a period during which the 
courts have used racial preferences and remedies to cure certain 
aspects of past discrimination.
  While this procedure can be defended perhaps in the short run, 
particularly when it is directly attached to a specific prior 
discriminatory act, such a policy cannot be a part of a permanent legal 
and political system.
  Our Supreme Court, which has led the drive to eliminate legal 
discrimination on a variety of fronts, is wisely taking a long-term 
view of the impact of racial preferences in America. After thoughtfully 
considering our future, the Supreme Court, in the Adarand case and in 
rejecting just this week the idea that California's civil rights 
initiative is unconstitutional and in other cases has clearly stated 
that this Nation must not establish a governmental system which 
attempts to allocate goods, services and wealth of this Nation on the 
basis of one's race, on the basis of the color of their skin. The 
result will be contrary to the equal protection clause of the great 
14th amendment to our Constitution, and contrary to our goal of a 
unified America in which people are judged on the contents of their 
character and not on the color of their skin.
  Mr. President, with regard to the nomination of Bill Lann Lee of 
California to be Assistant Attorney General for Civil Rights, I want to 
say with confidence that he is a skilled and able attorney, an honest 
man, a man who appears to have integrity and the kind of 
characteristics that make for a good attorney.
  His entire career has been spent in skilled advocacy in the civil 
rights arena. He is a Columbia Law School graduate who could have 
practiced on Wall Street but chose public interest law instead, and he 
should be commended for that. Sadly, however, I must join the chairman 
of the Judiciary Committee, Senator Orrin Hatch, and the former 
chairman of that committee, Senator Thurmond, who is here tonight and 
just made an excellent series of comments on this issue, to announce my 
opposition to Mr. Lee. Simply put, Bill Lee, like President Clinton, is 
outside the mainstream of American civil rights law, the very laws he 
would be charged with enforcing.
  While the American people and the Federal judiciary have steadily 
moved toward a color-blind ideal, Bill Lee has clung to a policy of 
racial preferences and spoils. Bill Lann Lee strongly advocates racial 
and gender preferences which are, in effect, virtually quotas in 
virtually every area of our society, including college admissions, 
congressional voting districts and employment.
  I believe a nation that draws voting districts on the basis of race, 
that uses race as a factor in college admissions and hiring and 
promotion decisions is, in fact, destined to have unnecessary racial 
strife and hostility and it does not bind us together as a nation.
  In my opinion, it would be unwise for the Senate to confirm Mr. Lee 
as Assistant Attorney General for Civil Rights. The Assistant Attorney 
General for Civil Rights is one of the most

[[Page S11757]]

important law enforcement positions in the Federal Government. If 
confirmed, Mr. Lee would have a powerful arsenal of more than 250 
lawyers at his disposal.
  After our hearings that I participated in and participated in his 
questioning, and after review of his record, I have concluded that Mr. 
Lee will continue to push for lawsuits, consent decrees and other legal 
actions that are outside the mainstream of current American legal 
thought. He sets the civil rights policy for the United States, and 
since his views are not in accord with the people, the Congress and the 
courts, he should not be confirmed in that position.
  Let me give you several examples. Last fall, the people of 
California, after full debate, passed proposition 209, California's 
civil rights initiative, which simply prohibits the State from 
discriminating against or granting preferences to anyone on the basis 
of race or gender.
  The very day after--he opposed that referendum--he lost that issue at 
the ballot box, Mr. Lee and his organization, the legal defense fund, 
filed suit arguing that proposition 209 was unconstitutional. This is a 
curious, even bizarre argument, because proposition 209 mirrors the 
language of the Civil Rights Act of 1964, one of the great civil rights 
acts that changed race relations in America. It also mirrors the 14th 
amendment.
  Even the ninth circuit, the most liberal circuit in America, 
unanimously rejected Mr. Lee's position. Moreover, on request for a 
rehearing, the full ninth circuit voted to deny a rehearing en banc. 
But even the most liberal circuit--it is considered the most liberal 
circuit in the country--rejected Mr. Lee's argument that proposition 
209, passed by the people of California to eliminate racial 
preferences, was unconstitutional. This is what the court said:

       As a matter of conventional equal protection analysis --

  That is the 14th amendment, the equal protection clause they are 
referring to----

       As a matter of conventional equal protection analysis, 
     there is simply no doubt that Proposition 209 is 
     constitutional . . . After all, the goal of the Fourteenth 
     Amendment to which this Nation continues to aspire, is a 
     political system in which race no longer matters. The 
     Fourteenth Amendment, lest we lose sight of the forest for 
     the trees, does not require what it barely permits.

  That means that the 14th amendment certainly does not require quotas 
and preferences and it certainly, if anything, will only permit them if 
they meet the strict test of scrutiny.
  A lawsuit against proposition 209 is another example of those who, 
when they lose their issue at the ballot box, have taken to the habit 
of going to Federal courts to ask the courts to overrule the will of 
the people through the elected representatives or through the 
initiative process.
  At his confirmation hearing, Lee again stated his odd argument that 
proposition 209 is unconstitutional. As Senator Hatch said, this is not 
an itty-bitty issue whether or not proposition 209 is constitutional.
  This initiative was a good initiative, carefully drawn, fully 
considered by the people of California. And Mr. Lee continues to assert 
to this day that it is violative of the Constitution of the United 
States. This is not fair to California, and we should not subject this 
Nation to those kinds of views.
  Not surprising, just this week the Supreme Court of the United States 
rejected his position on proposition 209 when it denied certiorari. It 
refused to review the ruling of the California court, the ninth circuit 
court, and held the ninth circuit opinion intact.
  It is important to note, I think, for the Members of this body, that 
this is the position of President Clinton. He adheres to the same view 
about proposition 209 being unconstitutional. And his Justice 
Department joined the ACLU and Bill Lee's legal defense fund and filed 
an appeal arguing that 209 was unconstitutional. In effect, the 
President of the United States is asking the unelected judiciary to 
overrule the well-debated and well-considered initiative of the people 
of California.
  So I think it is important for this body, as we consider this 
nomination, to consider what kind of message we are sending when we 
either confirm or reject Mr. Lee.
  I think we need to send a message that this body stands with the 
people and the courts and not this strained view of proposition 209.
  There are a couple of other examples that I think point out the 
position of Mr. Lee on racial preferences that indicate that he would 
not be a fit nominee for this position.
  In recent years, the Supreme Court, in the Croson decision and the 
Adarand decision clearly held that racial preferences are 
unconstitutional. The Supreme Court now subjects all Government racial 
preferences to what is called strict judicial scrutiny. As you know, it 
is very difficult, Mr. President, for a government program to withstand 
strict scrutiny.
  At his confirmation hearing however, Mr. Lee badly mischaracterized 
the spirit of these cases. He stated that the Croson and Adarand 
decisions stand for the proposition that ``affirmative action programs 
are appropriate if they are conducted in a limited and measured way.''
  This is not the position that the Supreme Court stated in Adarand. It 
greatly undermines that important decision. And it would be unwise for 
this body to confirm a nominee who would not faithfully follow the 
Adarand decision.
  As Senator Hatch, who chaired the committee, said so eloquently 
yesterday on the Senate floor, Bill Lee's description of Adarand 
purposely misses the mark of the Court's fundamental holding that such 
programs are presumptively unconstitutional.
  Moreover, Bill Lann Lee testified in his confirmation hearings that 
he was opposed personally to the holding in Adarand. I asked him what 
his personal view was. He said he personally opposed that ruling. 
Senator John Ashcroft asked Mr. Lee whether the set-aside program at 
issue in Adarand is unconstitutional, where a set-aside was given to a 
contractor simply because of their race or sex.
  In response, Mr. Lee noted that the Supreme Court in Adarand had 
remanded the case to the district court, which promptly, by the way, 
ruled the program unconstitutional. And in so doing, the district court 
stated:

       I find it difficult to envisage a race-based classification 
     that is narrowly tailored.

  But despite the district court's strong holding, Lee, like the 
Clinton Department of Justice, continues to state and continues to 
believe that ``this program is sufficiently narrowly tailored to 
satisfy the strict scrutiny test.''
  Mr. Lee simply refuses to accept the fact that strict scrutiny is an 
exceedingly difficult and high standard for a government agent to meet 
before it can establish racial preferences, that is, before it can give 
preferences to somebody for no other reason than their race.
  Under Mr. Lee's interpretation, all of the approximately 160 Federal 
racial preference programs that now exist would continue to be 
constitutional, although most scholars would say that under the Adarand 
decision, many of them, if not most of them, would fail to meet 
constitutional muster.
  So, Mr. Lee's interpretation of Croson and Adarand would make these 
seminal decisions virtually irrelevant. Almost any program could 
survive his definition of the strict scrutiny standard.
  Mr. President, America needs an Assistant Attorney General for Civil 
Rights who will honestly, soberly, and accurately read and apply the 
law--even when he disagrees with it.
  Unfortunately, as his confirmation hearing and followup answers 
indicate, he has been unable to shed his role as an activist, a 
partisan civil rights litigator. If confirmed, Lee would support the 
constitutionality of racial preferences and use his team of some 250 
lawyers to further an agenda that is not in keeping with the current 
state of American law.
  Let me talk about another example that is important for us to 
consider.
  Forced busing. Mr. Lee sued extensively over the years on issues 
involving busing. And once, for example, in Brown versus Califano, in 
1980, a Supreme Court case, Lee challenged the constitutionality of a 
congressionally passed statute, passed by this Senate and the House, 
that prohibited the Department of Health, Education, and Welfare from 
requiring States to bus children for racial purposes.

[[Page S11758]]

  Of course, under the statute, States could adopt forced busing if 
they wanted, and the Federal courts could still order busing. The 
statute merely prohibited the Department of HEW from forcing States to 
bus children on its own motion.
  In his brief challenging that law, Mr. Lee stated that the 
congressional amendments ``demonstrate discriminatory intent to 
interfere with desegregation.''
  Of course, that is an unfounded and unfair charge to make. Many 
people--I know Senator Byrd, on the other side of the aisle, had led 
the fight for that statute. He was not trying to undue and return to 
segregation. He simply was concerned, as millions of Americans have 
been, that the experiment with busing was not working. And he did not 
want the Department of Education, on its own, requiring it, and since, 
as years have gone by, it has been well-recognized that the experiment 
with busing has not achieved the goals that were intended, and is, in 
essence, for all practical purposes, a failure.
  Parents of all races oppose mandatory busing, and the law in Brown 
versus Califano reflected this. Again, the Federal courts rejected 
Lee's argument and upheld the statute. But that is just another example 
of where Mr. Lee has sued to implement a political agenda that he lost 
during the democratic process. That is, he lost it in the hearts and 
minds of the people and through their elected representatives. And he, 
therefore, sought to have the courts overturn that.
  In another forced busing case, Mr. Lee wrote the following in his 
brief. This is what he wrote:

       The term ``forced busing'' is a misnomer. School districts 
     do not force children to ride a bus, but only to arrive on 
     time at their assigned schools.

  I think many people feel that that is the kind of comment that shows 
arrogance and insensitivity to those who are concerned about children 
who have no way to go to school but by bus, to be told, ``Well, you 
don't have to ride a bus. You just have to show up at a certain school 
on time.''
  In conclusion, Mr. President, America is at a crossroads in the civil 
rights debate. The American people believe overwhelmingly that 
government services and benefits should be administered in a color-
blind fashion. As a nation we have made tremendous progress toward 
racial harmony, and though our work to eradicate racism is not finished 
and much bias and prejudice still exists in our land that we should not 
tolerate and should seek to eliminate, we should be proud of the great 
progress that has been made in the past 30 years.
  Mr. President, it gives me no pleasure to announce this vote against 
Mr. Lee. He is an admirable person, a fine lawyer. Please make no 
mistake, my opposition to him is in no way an attack on his integrity 
and character. However, his positions, particularly his tendency to 
file lawsuits to promote his agenda and his misreading of Supreme Court 
precedents, simply make him the wrong person at the wrong time to be 
the Assistant Attorney General for Civil Rights.
  I yield the floor.
  Mr. THURMOND. Will the Senator yield?
  Mr. SESSIONS. I do.
  Mr. THURMOND. I wish to commend the able Senator from Alabama for the 
excellent remarks he has made on this subject.
  Mr. SESSIONS. I thank the Senator from South Carolina for his 
leadership as chairman of the Judiciary Committee and his comments 
earlier this afternoon.
  I yield the floor.

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