Constitutional Opinions

...nor with a senator who thinks that Croson and Adarand make state-sponsored racial preferences presumptively unconstitutional opposing Lee because of his (and the president's) view that these cases do not significantly limit preferences...

...With the failure of Lee's nomination, the administration must now decide what it will do to fill Patrick's seat, vacant since last January zo...

...willing to accept it, Piscataway v. Taxman was over, save for the formality of asking the Justices to dismiss a case now moot...

...Republicans on Capitol Hill, by contrast, can name scores of them...

...There is no case that anyone can point to that clearly says [the school board] did violate" Title VII, he told a congressional committee...

...The ironies were evident, not least that corporations which routinely practice reverse discrimination (indeed, they're encouraged to do so by the very same groups that dunned them here) had effectively paid a victim of such discrimination...

...It faces a huge problem, inasmuch as the Republicans' rejection of Lee reflected not simply an unwillingness to have another Patrick as the assistant attorney general for civil rights, but also a fundamental disagreement with the president's positions on affirmative action...

...In late November, when the board agreed to take the outside money and offered the indeed grand total of $433,500 to Taxman, and she was TERRY EASTLAND is interim publisher of The American Spectator and the author of Ending Affirmative Action: The Case for Colorblind Justice (Basic Books...

...Patrick's arguments in Piscataway were the most telling indication of his racialist activism...

...The problem is that this view leaves no room for senators to exercise independent judgment about legal and ultimately constitutional issues...

...Though it went unremarked in the debate over Lee, the role played in Piscataway by the man he hoped to replace — Deval Patrick— undoubtedly contributed to the Senate Judiciary Committee's opposition to Lee...

...It was precisely because of these irreconcilable differences that Lee's assurance that he would put aside his personal beliefs and enforce the law, whatever it is, cut no ice with Republicans...

...The Piscataway school board, however, invoked race not to remedy discrimination but to ensure "diversity...

...Such shabbiness is a result (to be charitable) of the desperate situation in which civil rights liberals now find themselves...

...By its text and legislative history, Title VII is a colorblind statute: An employer may not use race in making employment decisions...

...Hatch would be proved right, however, only if congressional Republicans responded through a shrewd use of available powers: subjecting Lee to frequent oversight hearings, delaying the confirmation of other Justice nominees, and stalling action on legislative proposals of interest to the department...

...In the 1979 Weber case, the Supreme Court, committing judicial activism, rewrote Title VII to permit racial preferences in remedial circumstances...

...For obvious reasons, Reno is cool to the idea of giving Lee a recess appointment...

...In one of his first decisions, he abandoned Taxman and asked the Third Circuit for permission to file on behalf of the school board...

...Taxman is the white Piscataway, New Jersey high school teacher who sued her school board in 1989 when, in a down-sizing choice between two equally qualified teachers, it invoked "diversity" as the reason to lay her off in favor of the other teacher, who is black...

...And senators have that right, inasmuch as they are also sworn to uphold the Constitution...

...More unusual still is for a third party to engineer the settlement...

...The district court sided with Taxman, the Third Circuit Appeals Court sustained that decision, and the Supreme Court, having taken the school board's appeal last summer, was scheduled to hear the case in January...

...If Clinton decides to fight, and Congress responds in kind, the Lee story will have only just begun...

...Handling Taxman's complaint on a referral from the Equal Employment Opportunity Commission, the Bush Justice Department had been the original plaintiff...

...I s it improper for a senator to oppose a nominee who endorses the views of the president...

...But it was the substance of Patrick's position in the Third Circuit that would have alarmed Republican senators who reviewed the Lee nomination...

...77 tests illegal — a position that even this administration has not yet adopted...

...T he stunning final chapter of the Piscataway story came in the wake of the failed nomination of Bill Lann Lee to head the Justice Department's Civil Rights Division...

...In the Lee case, there was nothing wrong with a senator who believes Proposition 209 is constitutional opposing Lee because of his (and the president's) view that it isn't...

...42 January 1998 • The American Spectator cans but by many Democrats...

...Such a move, in Hatch's view, "would be about the dumbest thing they could do...

...The coalition tried to argue that its action in forging the settlement was perfectly honorable, even commendable...

...Meanwhile, his own record of cutting-edge activism gave Republicans little reason to think he might differ from Patrick...

...Perhaps most alarming, Lee has tried to extend disparate impact analysis to tests that are used to measure minimum competency and assess readiness for higher education...

...During his hearing Lee supported the Justice Department's brief contending that California's Proposition 209, which requires colorblind government, is unconstitutional...

...Indeed, it was Patrick who turned Piscataway into an infamous case—probably the biggest blunder of the Clinton legal team...

...As was widely noted, it's unusual for a case to be settled once the Supreme Court has agreed to hear it...

...Lee's arguments would essentially render these44 Is it improper for a senator to oppose a nominee who endorses the president's views...

...Hoping to be done with the mess, the Justice Department declined to advise the Supreme Court in 1996 on whether it should hear the school board's appeal...

...That brazen flip was widely criticized at the bar and not only by RepubliBill Lann Lee takes the rap for Deval Patrick...

...Ultimately it failed, as the Third Circuit effectively kicked the government out of the case...

...But many White House aides, eager to show there is still some energy in this executive, are enthusiastic...

...eventually drawn back into the case, a Patrick-less Justice Department flipped again to argue on very narrow grounds for Taxman...

...But no amount of spin could obscure the obvious fact that civil rights liberals did not want the Court to consider whether the law, in this case Title VII of the Civil Rights Act of 1964, really does permit an employer to discriminate in the name of diversity...

...More or less representing this school of thought was Attorney General Janet Reno, who said, "I just think it is important the president of the United States be able to nominate [and have confirmed] a person as distinguished as Bill Lee, who agrees with the president—with the president's preexisting views...

...But adjusting that for inflation and adding in her legal bills brought the one-hundred-cents on the dollar total to $433,500...

...0* The American Spectator • January 1998 43...

...But Lee mentioned neither Piscataway nor any other area of difference...

...And, when asked to state his understanding of the holdings in the landmark Croson (1989) and Adarand (1995) cases, which the Justice Department must enforce, he echoed the view of administration lawyers by saying, "They epitomize the Supreme Court's view that in general affirmative action programs can be appropriate if they are conducted in a limited and measured manner...

...As Orrin Hatch said in opposing Lee, such assurances only invite the Senate "to determine what the nominee's view of the law is...

...Inheriting the case, the Clinton Justice Department carried it to victory in the district court, in early 1994...

...With the school board willing to pay the original $125,000, the coalition groups knew they could pull in the rest from friendly corporations...

...Though this action was unquestionably at odds with the law, Patrick argued that the diversity rationale was available to the school board because the Supreme Court had never foreclosed it...

...Fearing a precedent-setting judgment that would further curtail the use of racial preferences, the Black Leadership Forum, a hastily devised coalition of twenty-one black civic, fraternal, and civil rights groups, apparently decided last August that it would try to eliminate the case from the Court's docket...

...The district court had awarded Taxman almost $125,000, mostly in back pay...

...That Taxman agreed to the settlement was understandable, given the dollar amounts involved and the fact she had won in the courts below...

...Republican senators publicly noted they did not want another Patrick, someone the administration sold as a "pragmatist" but who wound up pursuing liberal activist ends...

...Just as it is hard to imagine a new nominee who would not endorse the administration's affirmative action positions, it is also hard to imagine Republicans who opposed Lee approving someone who does endorse those positions, unless perhaps that individual did so in more qualified terms...

...It's thus not out of the question that Clinton will invoke his recess appointment power when Congress is not in session and give Lee the job...

...Piscataway, it was said, presented a "narrow" legal issue (if so, then why not let the Court decide...

...There was a certain shabbiness to the deal, of a piece with the behavior of thepresident's race commission mere days before the settlement when it refused to hear from opponents of preferences at a panel hearing on diversity...

...she, after all, was not the appellant...

...Some would say so, on the ground that the election has settled the choice of president, and whatever his views he is entitled to work with subordinates who agree with him...

...Patrick was enforcing not Title VII but what he hoped Title VII would become through yet more judicial activism, helpfully generated by his own arguments...

...But then Patrick became assistant attorney general...

...But the reason their situation has become so desperate lies fundamentally in the choice they made long ago to trade in the moral premise of the original civil rights movement—that no person should be favored or disfavored on account of race —for the immoral one that sanctions the opposite...

...and was not indicative of how affirmative action "really" is practiced (true: it is often much worse, with less qualified individuals preferred over much better qualified ones...

...Bill Lann Lee might have scored points with Senate Republicans if, when asked by Strom Thurmond how his leadership of the Civil Rights Division would differ from his predecessor's, he had brought up Piscataway and expressed satisfaction with the current state of Title VII law...

...Rare is the case that is settled at onehundred-cents on the dollar, yet the coalition decided such a proposal just might work...

...Consistent with the administration's view, Lee could not name a single federal program at odds with them...

...That the appellant, the school board, agreed to the deal was also understandable, since it was bound to lose in the Supreme Court, the only questions being the size of the majority for Taxman and the hardly inconsiderable one of its reasoning...