The Clinton Administration and Bill Lann Lee versus the Constitution

Ken Masugi

November 1, 1997

It’s less the case that the Republicans have finally gotten serious about affirmative action as a principled political issue than that the Clinton Administration and one of its nominees have gone overboard in its disregard of the Constitution. In the crucial position of assistant attorney general for civil rights the Republican majority on the Senate Judiciary Committee will exercise its constitutional authority in rejecting the Administration’s nominee and, more important, underline the seriousness with which it takes racial and gender preferences.

With the distribution of benefits and the manipulation of the bureaucracy as its focus, Congress rarely takes the Constitution seriously as a reason for action. But affirmative action preferences violate the Constitution’s most fundamental principle that America is comprised not of castes but of citizens of equal rights. The ideal that your fate today should not be determined by the standing of your ancestors is at the heart of America’s political philosophy — however often mocked in our history and social practices. Existing injustices make it particularly incumbent on government that it never violate this fundamental principle, as it seeks to secure justice under a color-blind Constitution.

Thus, in this case the Senate should deny the entirely reasonable presumption that an Administration be able to appoint its nominee, if that nominee betrays constitutional morality or constitutional principle. Senators who would vote to confirm a nominee whose views violated the Constitution would be violating their oath of office to defend the Constitution. Who could imagine a Secretary of the Defense who thought that the armed forces were unconstitutional?

The Administration’s nominee to enforce civil rights, Bill Lann Lee, is a Los Angeles attorney who works for the NAACP Legal Defense Fund, an activist civil rights litigation group. His career has been devoted to advancing the very devices of quotas and preferences that the Supreme Court has found unconstitutional, in case after case over the last several years. These are not differences of opinion over policy; they involve respect for the Constitution itself, our fundamental law.

Devoid of argument, Lee’s desperate supporters have advanced one poisonous argument: Republicans oppose him on account of his Chinese ancestry. Of course the Republicans waited far too long before voicing objections to Clinton nominees with dubious views. And it is also of course undeniable that the Democrats intended this nomination of a man whose immigrant parents represent the American dream to score political points with an important California ethnic group that has not always voted their way in the past.

A revealing moment occurred last Saturday when President Clinton reaffirmed his support of Lee’s nomination before a homosexual rights group. The context of group-rights reflects why Americans can with good conscience reject him. It is the insistence on group status for political gain — whether for racial and ethnic groups or for groups based on sexual orientation — that makes American constitutionalists uneasy about Lee, the homosexual rights movement, and President Clinton.

The Chinese-American groups that denounce opposition to him as racist represent elite and typically more leftist opinions than those of their rank-and-file membership. While Lee’s nomination may inspire young Asian-Americans to enter public service, his eagerness to use quotas will injure their career aspirations. Racial preferences harm Asian-Americans generally, especially in admissions to elite universities, public and private, whose policies favored black and Hispanic applicants over Asians and whites. But the Chinese-American groups supporting Lee remain silent or even submissive on these issues. Bill Lann Lee’s own education at Ivy League schools may be denied to other Asian-Americans on account of the policies he advocates favoring some groups over others.

Judiciary Committee Chairman Orrin Hatch appears to have the votes to prevent Lee’s nomination from going forward. But in defeat Lee’s moment of good faith can be to explain to some of his misguided supporters that his crime was not his ancestry but his unsound views on the Constitution. The opportunism of his supporters should not besmirch his reputation. It was not the group he belonged to but the group rights mentality that he would enforce as the law that is the concern of senators who swore an oath to uphold the Constitution.

Ken Masugi is an adjunct fellow at the Ashbrook Center for Public Affairs at Ashland University.