[Congressional Record Volume 143, Number 157 (Sunday, November 9, 1997)]
[Senate]
[Pages S12277-S12281]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                        BILL LANN LEE NOMINATION

  Mr. SESSIONS. Mr. President, I rise to talk about the Bill Lann Lee 
nomination as Assistant Attorney General for Civil Rights. He is a good 
man, a lawyer of skill and experience. He is the son of an immigrant 
who has worked hard and done very well professionally and financially.
  However, his nomination is in the Senate Judiciary Committee. Many of 
his positions are outside the mainstream of current legal thought, and 
I believe we need to reject that nomination. Regretfully, I intend to 
vote no when it comes up before the Judiciary Committee.
  There has been some discussion and comments made that there have been 
scurrilous attacks against him. I just want to say that is not so. 
Certainly it is not so from the Senators who are members of the 
Judiciary Committee who have considered this nomination. Senator Hatch, 
the chairman of the Judiciary Committee, came to this body earlier this 
week. He made a very long, professional address, delineating his 
concerns about this nomination and why he had decided to vote no. He 
talked about legal issues, professional issues, positions of 
importance, and that is the basis of our concern--not personal attacks.
  This position is a serious position. Mr. Lee has been treated 
respectfully. I have been at every hearing he has attended, and I have 
been at every hearing in which his nomination has been discussed. It 
has been discussed on a high level, according to the highest 
professional standards of this Senate. That is the way it should be. 
But his

[[Page S12278]]

position is an important position, so it is necessary that we ask 
important fundamental questions and that we get answers from him, and 
then once we get those answers, it is our responsibility, under the 
advice and consent responsibility of the Senate, to make a judgment as 
to how we should vote.
  I want to say we must protect the civil rights of all Americans. We 
cannot, however, utilize civil rights laws as a tool to favor one group 
over another. We need to know what Mr. Lee thinks on what the issues 
are facing America. He is an advocate. We know that. I respect that. 
But we need to go beyond that. How deep is his advocacy? Can he take it 
away and can he be an objective and effective administrator of the 
civil rights policies of the U.S. Government, or does he maintain some 
of his advocacy views that are outside the mainstream of American legal 
thought?
  That is why, I submit, he has been asked a number of questions and 
why we have taken this seriously.
  This position has been vacant for 18 months. The President just 
recently submitted his nomination. Our committee has moved promptly to 
consider that nomination, and we brought it up last week for a vote. 
His supporters, perhaps fearing they did not have the votes, asked it 
be put over again for another week. I expect we will take that up 
Thursday of next week. Some have suggested that if there are not enough 
votes in the committee to confirm this nomination, that we ought to, 
regardless of that, send the nomination to the floor.
  As a new member of the committee, I thought we had an interesting 
discussion about that. The Members who felt they were on the losing 
side raised quite a number of questions and earnestly argued for their 
position. Of course, this is a decision that we can make, and we can 
make any decision we choose, and they cited a number of historical 
examples why we should do that. Senator Hatch has been a member of the 
committee for a number of years and delineated the history. There has 
been no Executive nominee--and this nominee would be part of President 
Clinton's administration--reported out of that committee other than 
with a favorable recommendation since 1953.
  In fact, a number of Democratic Senators on the committee were the 
very ones who just a few years ago voted not to send the nomination of 
Bill Lucas, an African-American who had been nominated by President 
Reagan to be civil rights chief--they voted not to send his nomination 
out. And they did the same with William Bradford Reynolds, another 
nominee of President Reagan, who was not sent forward, on their 
objection.
  Therefore, they took the position--and I think one that is quite 
proper--if they so choose and if our committee so chooses, that the 
committee makes a recommendation as to whether or not a nomination 
should go forward.
  Let me say there have been suggestions that scurrilous complaints and 
attacks have been made. I hate to hear that, but I say they have not 
come from our side. I say there have been some unwise and intemperate 
remarks by those who are supporting the Lee nomination in this U.S. 
Senate. They have, in effect, said, ``Agree with us and you report out 
this nomination, or we will say you are against civil rights, we will 
accuse you of being against African-Americans, we will say you are 
against women, we will say you are against Chinese-Americans.'' They 
would, in fact, play the race card.
  Sad to say, they have done just that.
  Mr. President, let me share with Members of this body and the 
American people some of the things that were said by Senators in this 
body about those of us who have concerns about this nomination. The 
Democratic leader had a press conference earlier this week, and he 
said, ``The far right doesn't want the Civil Rights Division filled 
because they don't want civil rights laws enforced.''
  Now, I submit that is a sad thing to say. That is an extreme thing to 
say, that the chairman of our committee, Senator Orrin Hatch, who has 
worked hand in glove with this administration to confirm every nominee 
they sent forward for the Department of Justice, except this one. This 
is the only one he has objected to. It is extremely unfair to say that 
we don't want civil rights laws enforced because we want to question 
this nominee and we believe he is outside the mainstream of current 
legal thought.
  Senator Kennedy said, ``It's wrong for Republicans to hold him 
hostage to their anti-civil-rights agenda.'' I'm for civil rights. I 
believe in that. The other Members do. We just need to talk about what 
we really mean by the words ``civil rights.'' Do civil rights mean 
equality for all as we traditionally thought? Or do we go to a new 
definition of civil rights that means preferences and advantages to one 
group or another group because of the color of their skin? We are not 
against civil rights. Senator Kennedy went on to say, ``It would be an 
outrage for a small band of anti-civil-rights Republican Senators to 
bottle up this nominee. A vote against Bill Lee is a vote against civil 
rights,'' he said.
  Another Senator, Senator Boxer said, ``By opposing Bill Lee, I think 
the Republicans are sending a signal to every minority in this country, 
to every woman in this country, that, frankly, they don't believe in 
equal opportunity for everyone.''
  That hurts me, Mr. President, to hear a Member of this body make such 
an extreme statement as that. I really think it was unnecessary and 
goes beyond what ought to have been said. We can disagree whether or 
not this nominee ought to be confirmed. But I think we ought to all 
respect each other's views and opinions more than that. So I am 
concerned about that.

  Another Senator, Senator Mikulski, was also aggressive in her 
remarks. This is how it was reported in the Washington Times the other 
morning on the front page:

       Congressional Democrats, in a bid to save the nomination of 
     a Chinese American as assistant Attorney General for Civil 
     Rights, yesterday accused Republicans of racism.
       ``I don't think the United States Senate should be a forum 
     for attacking Chinese Americans,'' said Senator Mikulski. 
     ``We don't want Bill Lann Lee to be the Anita Hill of 1997,'' 
     she said.

  This is what the paper reported:

       Just after finishing leveling fire, the Maryland Democrat 
     walked over to Senator Edward M. Kennedy and said under her 
     breath, ``I hated to do that, but we had no choice.''

  I am glad at least to know that she was reluctant to make those 
comments. I think she well should have been because I intend to take, 
and every member of this committee intends to take, this nominee 
seriously. We need to give him a fair hearing. He needs to be treated 
respectfully. But if his ideas are outside the mainstream of current 
American law, outside the direction we believe this Nation ought to go 
in civil rights, we have a responsibility to reject the nomination, and 
that is what I intend to do. I intend to fulfill my responsibility.
  I want to say right now that I don't intend to be intimidated by 
attacks of that kind. I am going to do what I believe is right for this 
country.
  Let me read you what some of the testimony was at hearings about this 
nominee.
  Mr. Gerald A. Reynolds, an African-American, president of the Center 
for New Black Leadership, testified that he strongly opposed the 
nomination of Mr. Lee. He said:

       If confirmed as Assistant Attorney General, Mr. Lee's 
     background suggests that no democratic principle, controlling 
     legal authority, nor legal standard will prevent him from 
     furthering his particular ideological agenda.

  Further he said:

       For the last 30 years, traditional civil rights 
     organizations have used civil rights laws as a weapon to 
     extract benefits for racial minorities, no matter what the 
     cost. Mr. Lee has spent most of his professional life doing 
     that same thing.
       Mr. Lee's legal defense fund sought to overcome the will of 
     the citizens of California by persuading the ninth circuit to 
     affirm Judge Henderson's ruling against Proposition 209.
       I would argue that the legal defense fund's attempts to 
     nullify Proposition 209 constitutes a direct assault upon our 
     democratic principles. The legal defense fund's case against 
     Proposition 209 rested on a thin reed. Basically, it rested 
     upon two cases that are easily distinguishable from the facts 
     surrounding Proposition 209.

  I think we will talk about Proposition 209 in a minute. But just to 
point out, that is a civil rights initiative in California that said 
people should be treated alike regardless of the color of their skin, 
and it mirrored almost exactly the 14th amendment to the Constitution 
of the United States and the Civil Rights Act of 1964.

[[Page S12279]]

  Mr. Reynolds goes further:

       There are other examples. We can look to the lawsuit in Los 
     Angeles. The Los Angeles County Metropolitan Transportation 
     Authority decided to increase its bus fares and eliminate 
     monthly bus passes. Mr. Lee's legal defense fund lawsuit 
     alleged that the MTA action violated the civil rights laws 
     and the Constitution because they had an adverse impact on 
     minorities and poor people.

  Mr. Reynolds continues:

       We can debate whether it was a good idea to eliminate some 
     of the benefits that the citizens of Los Angeles enjoyed, 
     but I think it is a stretch to conclude that a policy 
     decision such as raising a bus fare and eliminating bus 
     routes and eliminating bus passes constitutes a 
     constitutional violation.

  He went on to note that:

       The lesson that we should have walked away with is that 
     race is a toxic circumstance, and that it is wrong to 
     distribute benefits and burdens on the basis of race.

  I questioned Mr. Reynolds and I asked him about busing and how people 
in the minority community feel about busing.
  Mr. Reynolds replied:

       I think it is clear that most parents are concerned with 
     the quality of education that their children receive, and 
     most parents, black and white, do not care. Well, actually 
     they prefer that it be a neighborhood school. More 
     importantly, I think time has shown that forced busing has 
     been an unmitigated disaster.

  Those were the words of Mr. Reynolds. I further asked him, had he 
seen cases like the Houston busing case, on which Mr. Bill Lann Lee was 
the attorney, and where lawyers, professional litigators, who were 
involved in these issues as a business, their livelihood, continued to 
pursue remedies that the children and the parents of the children do 
not want. Mr. Reynolds answered: ``Yes.''
  Well, that was from Mr. Gerald Reynolds, an African-American citizen 
of this country, opposing Bill Lann Lee. Is he against African-
Americans? I submit not. Is he against women? I submit not. Is he 
against Chinese-Americans? I submit not. Is he against civil rights? I 
say no. He's for civil rights. There is no doubt about that.
  Let me read you this excerpt from the testimony, in June, of Charlene 
F. Loen. Like Mr. Lee, she is a Chinese-American, and she gave some of 
the most poignant testimony I have heard before our committee. She 
actually came to tears. She talked about her son, Patrick, who wanted 
to attend Lowell High School in San Francisco, but he was prevented 
from attending that public high school because of a racial quota set up 
under a Federal court consent decree in 1983. Under the consent decree, 
she said:

       Hard work and good grades are not always enough. My son 
     Patrick found out the hard way.

  I am quoting again:

       In 1994, Patrick applied to Lowell, with a test score of 58 
     out of a 69. That year, Lowell set the minimum score for 
     Chinese students at 62. But then Lowell set the minimum 
     scores for white students and other Asians at 58. Lowell set 
     the minimum scores for blacks and Hispanics lower than that. 
     So Patrick could have gotten into Lowell if he were white, 
     Japanese or black. He was rejected because he was Chinese 
     American.

  She went on:

       Discipline, hard work, and academic achievement should be 
     rewarded. Patrick studied hard, he got the grades, and he was 
     rejected because he is of Chinese descent.

  She went on:

       The year Patrick was rejected, the San Francisco school 
     district announced the opening of a new academic high school, 
     Thurgood Marshall. I went to the school district to apply for 
     Patrick. Right away, the person at the office asked me, ``Is 
     Patrick Chinese?'' I said, ``yes,'' and she said that the 
     slots for the Chinese were already taken at Thurgood 
     Marshall. I asked how could that be because the application 
     period was not even over yet. She shrugged and said that that 
     is just what the consent decree requires. Patrick also 
     applied at three other high schools--Wallenberg, Washington, 
     and Lincoln--and all three rejected him because they already 
     had too many Chinese under the consent decree.

  Those were her words. That is not the way, I submit, we ought to 
operate our Government today. She felt very strongly about that. And 
this is a Chinese-American testifying before our committee. In 
November, she said the Federal judge who approved the consent decree 
approved a payment by the State of California of over $400,000 in legal 
fees to the NAACP, the legal defense fund, Bill Lee's unit, for 
opposing the lawsuit; in other words, the lawsuit that she had filed to 
try to get her son to be able to go to the school of her choice that he 
qualified to by objective standards.
  A judge denied a motion to end the consent decree.
  This is how she concluded her remarks.

       Under the consent decree can you be denied admission to 
     public school because of your race by treating people as 
     members of racial groups rather than as individuals with the 
     same rights before the law. The consent decree has dashed the 
     hopes of children, denied my son and many others the right to 
     opportunities they earned through hard work and diligence, 
     condemned children to needless busing, prevented parents from 
     being involved in their school and thereby holding school 
     administrators accountable, and divided the people of San 
     Francisco.

  Divided the people of San Francisco.

       This is the way things have been in San Francisco for the 
     past 14 years.

  Is Mrs. Loen against civil rights? I submit not. Is she against 
Chinese-Americans? No, she is not. She is a Chinese-American. Is she 
against women? No. Is she against minorities and civil rights? No.
  Let me read this testimony before the Judiciary Committee's 
Subcommittee on the Constitution Federalism, and Property Rights 
chaired by Senator John Ashcroft. This is the statement of Senator 
Mitch McConnell of Kentucky. He was talking about the ``legally 
ordained'' set-aside in Federal highway funding that mandated a certain 
percentage of the money be spent toward minority contractors.
  This is what Senator McConnell recounted:

       Michael Cornelius recently spoke poignantly to this point 
     before the Constitution Subcommittee in the House of 
     Representatives. He explained that his firm [his business] 
     was denied a Government contract under ISTEA [a Federal 
     program] even though his bid was $3 million lower than his 
     competitor's. Mr. Cornelius' bid was rejected because the 
     Government felt that the bid ``did not use enough minority- 
     or women-owned subcontractors.''
       To comprehend the full extent of the Government's 
     unconstitutional policy, you must understand that the 
     Cornelius bid proposed to subcontract 26.5 percent of the 
     work to firms owned by minorities and women, and, of course, 
     the Government concluded that even that was inadequate.

  This is the kind of matter that the Adarand decision dealt with, and 
the Adarand decision is a decision Mr. Lee says he believes is bad 
constitutional law. But that is the Supreme Court of the United States, 
which in the Adarand decision set forth standards that basically 
demonstrate that these kind of set-asides are not fair. They are in 
violation of the equal protection clause of the Constitution of the 
United States.
  Mr. President, I would also like to quote one more witness who 
testified. This is Mrs. Sue Au Allen, a Chinese-American, the President 
of the United States-Pan American Chamber of Commerce, a national 
nonprofit organization representing Asian-American business men and 
women, and other professionals.
  She is a very impressive lady, and was very direct in what she had to 
say about the Lee nomination. She said:

       Mr. Lee's record gives me grave concern, Mr. Chairman. As a 
     nation's top civil rights law enforcement official, he will 
     advocate certain policies on race and gender issues that are 
     contrary to constitutional guarantee of equal right and 
     opportunity for all Americans and that will have a 
     deleterious effect on racial and gender harmony in general 
     and on the rights of many individuals in particular.

  She went on to say:

       When I look at the arguments he has made in the last 20 
     years to determine his understanding of what equal protection 
     requires, I learned that he does not believe in civil rights 
     for all. He believes in quotas, set-asides, and preferences 
     based on race and gender. This is not my belief. The person 
     who believes in civil rights for some based on race and 
     gender is a wrong person for this job.
  She continues:

       And his organization's defense of continuing judicial 
     control of the desegregation of Lowell High School in San 
     Francisco for high admission standards required of students 
     whose admissions are kept at 40 percent . . .

  She particularly mentioned that. This was just a few weeks ago. It is 
the same comment made by Mrs. Loen that I read earlier about Lowell 
High School in San Francisco.
  Mrs. Allen continues, describing the assault on Proposition 209, the 
California civil rights initiative. This is what she said:


[[Page S12280]]


       To bolster the assault on 209, Mr. Lee's Legal Defense Fund 
     recruited the Federal Government as his ally. First, he filed 
     a complaint with the U.S. Department of Labor's Office of 
     Federal Contract Compliance Program and said that the decline 
     in minority admissions at the University of California 
     violates affirmative action rules imposed on Federal 
     contractors.

  This is the university:

       It argued that the lowered admissions reduced the number of 
     minority graduate students that the university might hire in 
     complying with Federal racial preference programs.

  This pushes legal theory, I submit, beyond any reasonable standard. 
This was for Mr. Lee's use. He is a private attorney now. He gained the 
support of his allies in the Department of Labor.
  Quoting Mrs. Allen:

       Second, although no student had ever complained about 
     discrimination because of Proposition 209 or the University 
     of California regents' vote to end racial preferences in 
     admissions, Mr. Lee's Legal Defense Fund filed a complaint 
     with the United States Department of Education attributing to 
     discrimination the decline in minority admissions and 
     enrollment at select University of California campuses.

  So, Mrs. Allen is making a significant point. What she was saying was 
that even though a private attorney, Mr. Lee has been adept at inducing 
the Federal Government to join with him in his legal theory.
  If confirmed in this position, he will, in fact, be the Federal 
Government, and he will have 250 attorneys at his disposal to send out 
on whatever cause he might deem appropriate.
  She goes on to say this:

       A San Francisco school district has been under a consent 
     decree since 1983 because the Legal Defense Fund brought a 
     suit to desegregate the school.

  That is, since 1983, they have had a Federal judge monitoring that 
school system, I submit Mr. President.
  She continues:

       Under that decree, Lowell High School, a magnet school, 
     where competition for admission is fierce, operates with a 
     40-percent cap on Chinese students. In addition, the school 
     sets higher admission standards for Chinese students than for 
     any other race or ethnic group. Recently, several Chinese 
     students and their parents challenged that consent decree. 
     But the Legal Defense Fund . . .

  Which I submit is Mr. Lee's organization which he headed in the west:

       . . . the Legal Defense Fund has actively defended the 
     continuing judicial control over the district in the name of 
     desegregation, this despite the adverse impact on Chinese 
     students who would otherwise be admitted to Lowell and 
     against the strong opposition of their parents.

  Chinese-American parents.
  Mrs. Allen said:

       When the Legal Defense attorney called the consent decree 
     segregation by inclusion, to me it is desegregation by 
     discrimination and exclusion. These examples raise a very 
     important question. As head of civil rights enforcement, will 
     Mr. Lee argue for continued forced busing?

  This lady Sue Au Allen, president of the Pan American-Asian Chamber 
of Commerce--is she anti-Chinese? She is of a Chinese descent. Is she 
antiwomen? Is she anticivil rights? Is she antiminority? I submit no.
  Serious questions have been raised about this nominee. This use of 
scurrilous attacks has not been coming by those of us who are concerned 
about nominations. We are talking about real issues. We are talking 
about real cases. We are talking about the position of the U.S. 
Department of Justice and what kind of position it will be taking in 
these cases as the years go by.
  Those who oppose him, however, have been intemperate at best in those 
remarks, and I hope and pray that they will evaluate that and be more 
responsive, be more respectful of their colleagues in the future.
  Let me say this. Incivility is not acceptable. In my opinion, the 
Judiciary Committee over the past decade, over 20 years, 15 or 20 
years, has gone through a series of confirmation battles that have not 
been healthy. They have not reflected well on the Senate, and they have 
not done well in analyzing whether or not people should be confirmed. I 
for one believe we ought to do better. I believe we ought to have a 
higher standard. I believe we ought to dig in seriously to the nominees 
and what they believe, their integrity, their ability and their legal 
philosophy. And I think we can do that and sometimes we are going to 
say no. We hate to. It is no fun to say no to a person who would like 
to have a position of prominence. But that is our position of 
responsibility and we must face up to it.
  Let me just say this. Why is it that I am concerned with this 
nomination? There has been a lot of talk about the California civil 
rights initiative, Proposition 209, a very, very important event in 
American history.
  Basically, what the people of California said is we do not believe in 
preferences. We, in effect, believe that in our State we want the law 
to be very similar and basically the same as what the 14th amendment to 
the Constitution of United States says. So they really encapsulated the 
1964 Civil Rights Act, and the people of California passed that by a 
significant margin.
  Mr. Lee's organization immediately joined in a challenge to that 
proposition and in fact filed a brief. It is one thing for him to 
oppose the proposition when the people are voting on it, to campaign 
about it, but he went further than that. His organization joined in the 
litigation to have Proposition 209, which says almost the same thing as 
the Constitution of the United States, declared unconstitutional, a 
perfectly legitimate referendum declared unconstitutional. And this is 
what the court of appeals, the Ninth Circuit Court of Appeals held when 
they considered Mr. Lee's opinion on Proposition 209.
  They said this. This is a Federal court:

       As a matter of conventional equal protection analysis --

  Equal protection clause of the 14th amendment--

     there is simply no doubt that Proposition 209 is 
     constitutional.

  Those are the words of the ninth circuit, the most liberal of the 
eleven circuits in this country. Everyone suggests that. That circuit 
flatly rejected Mr. Lee's position, saying there is no doubt about it. 
And what is troubling is here you have an attorney seeking to attack 
the will of the people by bringing in a challenge to the 
constitutionality of an act that had no basis.
  The court continued to say:

       After all, the goal of the 14th amendment, to which the 
     Nation continues to aspire, is a political system in which 
     race no longer matters. The 14th amendment, lest we lose 
     sight of the forest for the trees, does not require what it 
     barely permits.

  In other words, it does not require, the 14th amendment does not 
require preferences based on a person's race. It barely permits it. 
Only in the most extreme circumstances, only under the most strict 
scrutiny will a court ever approve an event in America in which we give 
a benefit to one person, thereby denying it to another simply because 
of their race.
  So we have to be honest about this. It is time for us to talk about 
it seriously. We believe--I certainly do--in affirmative action, to go 
out and affirmatively solicit every person to apply, to seek out the 
best talent, to give people every chance to succeed, but we cannot 
tolerate quotas and set-asides and things of that nature.
  Well, that is the important issue, Proposition 209, and Mr. Lee, when 
questioned about it, says it continues to be his position. And at the 
Civil Rights Division of the Department of Justice he would be prepared 
to file a brief on behalf of the United States of America in the 
Supreme Court to declare it unconstitutional. But he would not get that 
opportunity because the Supreme Court refused to even review the Ninth 
Circuit Court of Appeals ruling. The Supreme Court of the United States 
let it stand, denying certoriori, in effect saying this is a matter not 
even worth our time to consider because the law is so clear, agreeing 
totally with the ninth circuit's opinion.

  Well, there is another matter of importance, and that is the Supreme 
Court decision, recent decision in the Adarand case. Adarand dealt with 
the set-asides in Federal law, that in effect tell Federal Government 
highway administrators that they must set aside a certain percentage of 
Federal contracts for minority contractors. I earlier read the comments 
of Mr. Cornelius who was the low bidder by $3 million on one of those 
contracts and had an agreement to hire 25 percent of his subcontractors 
who would be minorities, and that was rejected because it was not 
generous enough. This is the kind of issue with which we are dealing.
  Adarand said basically that that cannot continue. I would suggest 
that the Supreme Court is very seriously thinking about this issue, and 
I believe the

[[Page S12281]]

Supreme Court has looked down history in America and they have thought 
about it and they are saying we have got to stop, we have got to get 
out of this business of disbursing the goods and services of America 
based on what group you belong to. This is not the kind of principle 
upon which our country was founded, and that is what they meant by the 
Adarand decision, and that's why legal scholars consider it of 
thunderous importance, an extremely important decision.
  OK. How does Mr. Lee feel about that? He opposed the Adarand 
decision. I asked him, does he still believe it is bad law? He says he 
believes it is bad law. He testified he does not agree with it. And he 
said something that is particularly troubling about it.
  In his testimony, Mr. Lee stated that Adarand allowed affirmative 
action programs, which in this case means a kind of set-aside, in 
effect quotas. Sometimes affirmative action means affirmative outreach. 
Sometimes it means racial preferences and quotas. It just depends how 
it is used. But in this case we are talking about Adarand which had a 
set-aside in the law to favor some people. He said he thought they were 
legal under the Adarand decision if conducted in a limited and measured 
way.
  That is not, Mr. President, what the Court in Adarand said. The Court 
in Adarand said that set-asides like this highway program are 
presumptively unconstitutional and can never be allowed except under 
the strictest of scrutiny. It is for the most significant of reasons 
that would justify these kinds of actions.
  So what troubles me about that, and I know Senator Hatch raised it, 
is it suggests that as the top civil rights lawyer in this country he 
would not interpret Adarand the way the legal scholars do but would 
interpret Adarand in a way that would justify him applying the 
resources of the 250 attorneys in the Department of Justice to 
undermine the Adarand decision the Supreme Court has rendered.
  So let me ask, am I against civil rights to say that? Do I not 
believe in civil rights to say that I agree with the Supreme Court of 
the United States, I agree with the ninth circuit of the United States 
with regard to Proposition 209? I submit not. I believe in civil rights 
for everyone and I think most Americans do.
  I wanted to quote from the words of Congressman Charles Canady who 
testified before the Subcommittee on Constitution, Federalism and 
Property Rights of the Judiciary Committee just a few days ago 
actually. And this is what he says, Congressman Canady from Florida:

       If we go back to 1961, when President Kennedy promulgated 
     the original Executive order on affirmative action, it was 
     clear in that Executive order that steps were to be taken to 
     reach out to all parts of the community to bring people into 
     the pool of applicants for opportunities, but that people 
     were to be treated without regard to their race. That 
     specific language was used in the Executive order.
       So I believe that Senator McConnell's proposal encompassing 
     a number of outreach elements is [what we should do].

  Congressman Canady continued:

       Now, this system of set-asides [which was legally 
     challenged in the Adarand decision] that is in place has been 
     described as a remedial system. The problem with this system, 
     however, is that it provides benefits to people who have not 
     demonstrated that they are victims of any specific wrongdoing 
     and it imposes cost on individuals who have been demonstrated 
     to be guilty of no wrongdoing themselves.
       Do we get that? It provides benefits to people who do not 
     demonstrate that they have been harmed and it provides costs 
     on those who have not been demonstrated to have done anything 
     wrong. Is it against civil rights to think such a policy is 
     not good?

  Congressman Canady continued, I think saying it well:

       I believe if we step back from this system [step back, like 
     the Supreme Court is doing] which was put in place with the 
     best of intentions [these set-asides and preferences and 
     quotas] we have to conclude on the basis of our history as 
     Americans that racial distinctions are inherently pernicious. 
     It is fundamentally wrong [Congressman Canady continued] for 
     our country to divide this country into groups based on race 
     and gender and then award benefits to some people because 
     they belong to the right group and deny benefits to other 
     people because they belong to the wrong group. That is 
     inconsistent with our fundamental American values. It is 
     inconsistent with the way our Government should treat its 
     citizens.

  He concluded:

       I believe that the American people are becoming more and 
     more weary of this failed system of race and gender 
     preferences. They want to reaffirm the promise of America, 
     that all Americans will be treated as individuals who are 
     equal in the eyes of the law.

  Well, I thought a good while about this. I think it was important to 
do so. I will just say this. We cannot end discrimination by practicing 
discrimination. That is fundamental. Make no mistake, when you benefit 
one person because of the color of his or her skin you are depriving 
another person because of the color of his or her skin. It is just that 
simple. It can be no other way. And the courts are agreeing with this. 
And Mr. Lee is outside the mainstream of judicial thought in America 
today. His opinion, opposing the most important Adarand decision, 
represents that he opposes the position of the Supreme Court of the 
United States. For that reason I feel compelled to vote ``no'' on his 
nomination.
  I yield the floor.
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                              N O T I C E

Incomplete record of Senate proceedings. Except for concluding business 
                             which follows,
 today's Senate proceedings will be continued in the next issue of the 
                                Record.


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