S11754 CONGRESSIONAL RECORD — SENATE November 5, 1997 motion to proceed prevailed by the track. I know that we wish to pass fast After Mr. Lee was nominated, I met most recent vote, and the result is now track. We also wish to pass Amtrak re- with him and made clear that I had an the regular order of the Senate would form and we also wish to pass all the open mind regarding his nomination. I be the fast-track legislation. The Sen- appropriations bills, and we only have told him that his positions on the is- ator asked unanimous consent to go to a couple of days. So we are going to try sues would be critical, and that the morning business. I didn’t object to to accommodate everybody’s requests. committee was eager to hear his an- that. We also have a unanimous con- But the highest priority I believe will swers to questions. sent for tomorrow’s proceedings deal- be to pass the appropriations con- Before the hearing, some expressed ing with DOD authorization. At that ference reports as soon as possible. I alarm at many of the cases and posi- point, does the Senator expect to go believe the D.C. bill will be the first tions that Mr. Lee had taken during back to the legislation pending, or can one up. That is not a conference report. his leadership in activist civil rights the Senator inform us whether he will It is a bill. But I think we have an organizations. They were concerned be propounding additional unanimous- agreement on D.C., so we will get that about whether he would use his job and consent requests with respect to Sen- one accomplished. Hopefully then we army of attorneys in the Justice De- ate business? will have three other conference re- partment to advance the same agenda Mr. NICKLES. To respond to my ports we will be able to do in the next he had pursued for the Legal Defense friend and colleague, I think the next day or two, and we will have, I am sure, Fund. I understood this. But, at the order, after we pass the DOD authoriza- some additional time for my colleague same time, I have known since my days tion bill, would be to take up the Dis- to spend on fast track as well. as a small town lawyer that a good at- trict of Columbia appropriations con- Mr. KERRY addressed the Chair. torney is a strong advocate for his cli- ference report, or appropriations bill. The PRESIDING OFFICER (Mr. ent, regardless of whether he agrees In addition to that, we may well be FAIRCLOTH). The Chair recognizes the with everything the client wants. taking up Amtrak reform legislation, distinguished Senator from Massachu- Mr. Lee had an obligation to con- which has also been working its way setts. vince us at the hearing that he could Mr. KERRY. Mr. President, if I might through, not exactly on a fast track, transfer from the role of creative advo- share with my friend from North Da- but it has been working its way cate for activist civil rights organiza- kota information with respect to at through, and hopefully we can get it tions to neutral and objective enforcer least Amtrak. We have an agreement done as well. of the Nation’s civil rights laws. This now reached with respect to Amtrak. Mr. DORGAN. When does the Senator he failed to do. He would not give any The language is now in print, and I be- expect us to get back to the fast-track cases or positions that he had brought lieve it is being hotlined on both sides. on behalf of the Legal Defense Fund legislation? So with respect to the Amtrak effort Mr. NICKLES. That remains to be that he would not bring as head of the in terms of any interruption, we would seen. That is really Senator LOTT’s Civil Rights Division. He would not anticipate that going through here in a call. It may well be Thursday. It may cite any difference between himself and minimal amount of time. I am not sure the last civil rights chief, Deval Pat- well be Friday. It may well be after the how much the chairman of the commit- House would take it up. rick, who was an unwavering pro- tee, Senator MCCAIN, wants, but I Mr. DORGAN. Further inquiry. I will ponent of the civil rights agenda of the would not imagine it will take more left. Unfortunately, it became clear appreciate the Senator’s response. than half an hour or so. And so I do not As I understand it, conference re- during the hearing that Mr. Lee’s advo- think that will interrupt the course of ports are privileged matters. cacy is guided by a dedicated personal business with respect to fast track in Mr. NICKLES. That is correct. commitment to the positions he has any significant way. Mr. DORGAN. They can be brought Mr. DORGAN. If the Senator will advanced over the years. Mr. Lee started by proclaiming that to the floor of the Senate at any time. yield, an agreement on Amtrak would proposition 209 is unconstitutional. In Amtrak and other intervening legisla- be welcome news I think to all Mem- proposition 209, the people of California tion will require unanimous consent, is bers of the Senate, and it would not be voted to end all government pref- that correct? my intention to try to obstruct that. I Mr. NICKLES. I would have to ask am simply trying to determine when erences and set-asides on the basis of the Presiding Officer on Amtrak. My we might get back to fast track so that race, sex, or national origin. Then, colleague is correct on the conference we might entertain amendments. with the active support of Mr. Lee and reports on appropriations bills. Yes, his organization, a Federal judge f they could. blocked the will of the people, saying We have four appropriations bills NOMINATION OF BILL LANN LEE the referendum was unconstitutional. that we are trying to get through. It TO BE ASSISTANT ATTORNEY The claim was that proposition 209 vio- happens to be that we are at a deadline GENERAL FOR CIVIL RIGHTS lated the 14th amendment, when in re- by November 7, so our highest priority Mr. THURMOND. Mr. President, I ality it mirrored the 14th amendment. is try to complete the various author- rise today to express my opposition to Far from violating the Constitution, ization bills. the nomination of Bill Lann Lee to be proposition 209 essentially states what Mr. DORGAN. If I might just inquire Assistant Attorney General for Civil the Constitution requires. The Ninth further, the reason I ask the question Rights. I have reached this conclusion Circuit recognized this simple fact on is that because we are on the legisla- only after much thought and careful appeal. Regardless, Mr. Lee is steadfast tion dealing with fast track, there are consideration. But I am certain that in his view that it was unconstitu- a number of Senators who will be want- this is the right course. I commend tional for the people of California to ing to offer amendments. It will not be Senator HATCH for his leadership and bring preferences to an end. a pleasant experience to learn that we the excellent statement he delivered on Another disturbing but related issue move to other things and then come the floor yesterday in this regard. involves judicial taxation. I firmly be- back to fast track with some under- When the possibility that Mr. Lee lieve that Federal judges do not have standing there is no time for amend- would be nominated for this position the Constitutional power to raises ments. I am just inquiring to try to de- was first brought to my attention, I taxes or order legislative authorities to termine what the expectation of the was impressed by what I heard. Mr. Lee raise taxes. It is a simple issue of sepa- leadership is with respect to the fast- was born to a hard-working, deter- ration of powers. Taxes are a matter track legislation. mined family of Chinese immigrants. for the legislative branch, the branch Mr. KERRY. Mr. President, would His success at Yale and Columbia Uni- that is responsive to the people. The the acting leader yield for a minute? versity Law School reflects that he in- organization for which Mr. Lee works Mr. NICKLES. First, let me respond herited a commitment to succeed. I was instrumental in the decision of a to my colleague, Senator DORGAN. I was also assured then, and continue to Federal judge in Missouri to order that hear what the Senator is saying. I believe, that he is a man of character, taxes be raised. Mr. Lee would not dis- know that the Senator has some honesty, and intellect. I relayed that avow this approach. Although he stat- amendments he wishes to offer on fast impression to the White House. ed that if confirmed he would not ask November 5, 1997 CONGRESSIONAL RECORD — SENATE S11755 a Federal judge to order a legislative on an inspiring story, but rather, on a And, unfortunately, it doesn’t end authority to raise taxes in the school nominee’s commitment to the bedrock there. When the Government denied desegregation context, he refused to principle that every American should the job to Mr. Cornelius, it also denied rule out such a request in other civil be seen as equal in the eyes of the law. the job to all of Mr. Cornelius’ employ- rights contexts. He fails to recognize The nomination of Bill Lann Lee is ees—over 80 percent of whom are mi- that fundamental principles of separa- in serious peril, and for good reason. norities. tion of powers prohibit judicial tax- Mr. Lee has a long, well-documented, So the Government, in its infinite ation. and disturbing allegiance to the policy wisdom, not only committed discrimi- Mr. Lee’s views on proposition 209 of government-mandated racial pref- nation, but it paid $3 million in the and judicial taxation represent support erences. In spite of the Constitution process. for a dangerous tactic of legal activ- and recent court decisions, Mr. Lee I have filed an amendment to ISTEA ists. They use the unelected, unac- continues to assert that government that would remove this pernicious countable Federal judiciary to accom- jobs and contracts should be handed practice of awarding jobs and contracts plish what they cannot achieve out based on the immutable traits of based on skin color. Racial preferences through the democratic process. When race and gender. are discriminatory, unfair, and uncon- they lost at the ballot box on propo- Mr. Lee’s views, however, go one stitutional. This principle is being re- sition 209, they got a lone Federal giant leap beyond simply allowing ra- affirmed courtroom by courtroom, judge to block the will of the people. cial preferences. Mr. lee has argued State by State all across this country. When they wanted to implement their that the Constitution, in fact, requires But what does Mr. Lee think? Does lavish desegregation experiment in racial preferences. Let me restate that. he think the Constitution bars these Missouri, they got a lone Federal judge Bill Lann Lee has filed papers in Fed- kind of racial preferences? Absolutely to raise taxes. They have pursued their eral court asserting that the very Con- not. So, I think it’s fair to say that Mr. solutions in utter disregard of the peo- stitution which prohibits discrimina- Lee’s message to Mr. Cornelius is: ple. tion based on race and gender, in fact, ‘‘Sorry about the discrimination Today, Mr. Lee and his allies are fail- requires the government to engage in against you, your family, and your em- ing to find support even in the courts. discrimination based on race and gen- ployees. But, the Constitution requires The Federal judiciary, led by the Su- der. it.’’ As absurd as this theory sounds that preme Court, is fashioning a civil JOINING THE CLINTON CORPS OF SOCIAL is what Bill Lann Lee argued in court rights jurisprudence based on the merit ENGINEERS briefs this year as he fought the will of of the individual rather than pref- The Clinton administration is all too the California voters in proposition 209. erential treatment for groups. Mr. Lee eager to add Mr. Lee to its army corps Thankfully, the Ninth Circuit Court of has fought against and continues to be of social engineers. Civil rights lawyers Appeals unanimously rejected the Lee uneasy with this constructive, solidify- like Norma Cantu and Judith Winston theory. In simple, straightforward lan- ing law. It is clear that he would use undoubtedly relish the opportunity to guage, the court explained, ‘‘the 14th his position and arsenal of attorneys to add a lawyer with the misguided views Amendment, lest we lose sight of the dilute or circumvent this progress to- of Bill Lann Lee to their brigade. forest for the trees, does not require ward ending preferential treatment. Cantu and Winston, have helped lead what it barely permits.’’ the administration’s battle against the An excellent example of the failed And, as expected, the Supreme Court courts and the Constitution. These approach of the past is forced busing of this week refused to validate the Lee lawyers, like Lee, have become skilled school children. At the hearing, Mr. theory and allowed the ninth circuit at establishing racial preferences be- Lee continued to express support for ruling to stand. the use of forced busing in some cir- hind the scenes through the jungle of THE CONSTITUTION DOES NOT REQUIRE Federal regulations and by way of the cumstances, even in the 1990’s. He DISCRIMINATION would not back away from his unbe- Throughout Mr. Lee’s lifetime of ad- quiet camouflage of consent decrees. Cantu and Winston, recently lievable assertion in a Supreme Court vocacy, he has consistently overlooked launched a politically motivated inves- brief that ‘‘the term ‘forced busing’ is a one profound point, that is: Every time tigation of the University of California misnomer.’’ the government hands out a job or a graduate schools. As you may remem- Mr. President, many of us in the Sen- contract to one person based on race or ate are concerned about judicial activ- gender, it discriminates against an- ber, Mr. President, in 1995, the regents ism on the bench, and we have every other person based on race or gender. of the University of California voted to reason to be. We must keep in mind Mr. Michael Cornelius recently spoke end heavy-handed racial preference that a judicial activist decision starts poignantly to this point before the policies in student admissions, opting with a proposal by a legal activist. We Constitution Subcommittee in the instead to base admissions solely on cannot and should not stop private or- House of Representatives. He explained merit. These policies had for years re- ganizations from advocating legal ac- that his firm was denied a Government sulted in a two-tiered admissions sys- tivism if they wish. However, we have contract under ISTEA, even though his tem, by which students of preferred ra- a duty to reject legal activism as the bid was $3 million lower than the near- cial and ethnic backgrounds were ad- guiding principle for our Nation’s top est competitor. Mr. Cornelius’ bid was mitted with inferior qualifications civil rights law enforcement officer. rejected because the Government felt than those of other racial and ethnic I must strongly oppose this nomina- that the bid did not use enough minor- backgrounds. tion. ity or women-owned subcontractors. The regents recognized that this sys- I yield the floor. If you think that’s bad, think about tem embodied unconscionable discrimi- The PRESIDING OFFICER. The this: The Cornelius bid proposed to sub- nation which hurt not only those bet- Chair recognizes the distinguished Sen- contract 26.5 percent of the work to ter-qualified applicants that were de- ator from Kentucky. firms owned by minorities and women. nied admission, including many Asian- Mr. MCCONNELL. Mr. President, I Yet, 26.5 percent was not enough in the American applicants who suffered se- rise today to express my deep dis- world of so-called goals and timetables verely under the preference policy, but satisfaction with the misguided views that Mr. Lee thinks the Constitution it also hurt minority students who of President Clinton’s nominee for As- requires. Mr. Lee’s goals and time- faced stigmatization as racial pref- sistant Attorney General for Civil tables are more appropriately called erence admittees. Rights. quotas and set-asides. Now, as a result of the regents’ deci- As many of my colleagues have made You see, the Government took the sion, the University of California will clear, Mr. Lee is a fine man, with ac- contract away from Mr. Cornelius and no longer punish or reward applicants complished legal credentials. His story awarded it to a bidder that proposed to based on their race, but will rely on of hard work and success is truly in- contract 29 percent of the work to mi- widely accepted, long-standing admis- spiring. But, Mr. President, the posi- nority firms, and who charged the Gov- sions criteria that focus on individual tion of Assistant Attorney General for ernment $3 million more than Mr. achievements, such as grades, test Civil Rights should not be filled based Cornelius. scores, and life accomplishments. S11756 CONGRESSIONAL RECORD — SENATE November 5, 1997 Most Americans would applaud the versity of California for its race-neu- when it is directly attached to a spe- regents for their prudent decision. But tral approach? The termination of hun- cific prior discriminatory act, such a not Cantu and Winston. They are using dreds of thousands of dollars in Federal policy cannot be a part of a permanent their civil rights positions at the De- funds. legal and political system. partment of Education to launch a And what does this pattern and prac- Our Supreme Court, which has led Federal taxpayer-funded investigation tice tell us that Mr. Lee will do with an the drive to eliminate legal discrimina- to determine whether schools are dis- army of lawyers at the Justice Depart- tion on a variety of fronts, is wisely criminating by refusing to discrimi- ment? He will bring down the power of taking a long-term view of the impact nate. the Federal Government upon State of racial preferences in America. After The Los Angeles Times reported that and local governments that refuse to thoughtfully considering our future, Winston has asserted that: mandate racial preferences. This, Mr. the Supreme Court, in the Adarand The University of California may have vio- President, is simply unacceptable. case and in rejecting just this week the lated federal civil rights law by dropping its Mr. Lee’s views are neither moderate idea that California’s civil rights ini- affirmative action rules and relying on test nor mainstream. And, his views are not tiative is unconstitutional and in other scores and grades as a basis for selecting new cases has clearly stated that this Na- students. isolated incidents. They are not glib, off-handed statements made during his tion must not establish a governmental This baseless investigation turns the youth. They are not dusty law review system which attempts to allocate principle of nondiscrimination on its articles written by a starry-eyed grad- goods, services and wealth of this Na- head by threatening schools that use uate student. And, they are not cre- tion on the basis of one’s race, on the race-blind admissions policies and ob- ative theories espoused in the ivory basis of the color of their skin. The re- jective measures of merit. This inves- tower of academia. sult will be contrary to the equal pro- tigation has provoked criticism even Mr. Lee’s well-documented views are tection clause of the great 14th amend- from those who typically defend race the voice of a man who exhibits an ment to our Constitution, and contrary preferences. For example, University of alarming allegiance to racial pref- to our goal of a unified America in Texas Law School professor Samuel which people are judged on the con- Issacharoff, recently stated that ‘‘[Ms. erences and a disturbing disregard for Winston] is voicing a theory that does the Constitution. This voice—this tents of their character and not on the not have support in the courts.’’ Pro- man—should not be entrusted with the color of their skin. Mr. President, with regard to the fessor Issacharoff went on to explain noble task of upholding the equal pro- nomination of Bill Lann Lee of Califor- that he was ‘‘not aware of any legal tection clause of the U.S. Constitution. nia to be Assistant Attorney General support for the idea that would say the Several days ago, I placed a hold on for Civil Rights, I want to say with Harvard Law School, for example, can- Mr. Lee’s nomination, and today, I re- confidence that he is a skilled and able not accept only the cream of the crop spectfully announce my formal opposi- if doing so would have an impact on a tion to his nomination. We must end attorney, an honest man, a man who minority group.’’ the divisive practice of awarding Gov- appears to have integrity and the kind And in an editorial, the Sacramento ernment jobs and contracts and oppor- of characteristics that make for a good Bee, a newspaper I might add that sup- tunities based on the immutable trait attorney. ports race preferences, referred to the of skin color and ethnicity. Respect for His entire career has been spent in administration’s legal theory as ‘‘an our Constitution, our courts, and— skilled advocacy in the civil rights Orwellian misreading of the law.’’ most importantly—our individual citi- arena. He is a Columbia Law School ‘‘Equally important,’’ the Bee con- zens, demands no less. graduate who could have practiced on cluded, ‘‘the investigation is an abuse Mr. THURMOND. Mr. President, I Wall Street but chose public interest of federal power, designed to punish wish to commend the able Senator law instead, and he should be com- California and its citizens for [its] deci- from Kentucky for the excellent trea- mended for that. Sadly, however, I sion on affirmative action. * * *’’ tise he just made. must join the chairman of the Judici- So where did this investigation origi- Mr. AKAKA addressed the Chair. ary Committee, Senator Orrin HATCH, nate? Who could muster the contorted The PRESIDING OFFICER. The Sen- and the former chairman of that com- legal arguments to justify these ator from Hawaii is recognized. mittee, Senator THURMOND, who is here threats and these expenditures of tax- Mr. AKAKA. I thank the Chair. tonight and just made an excellent se- payer dollars? (The remarks of Mr. AKAKA pertain- ries of comments on this issue, to an- Were these complaints filed by a stu- ing to the introduction of S. 1376 are nounce my opposition to Mr. Lee. Sim- dent who alleged discrimination? A located in today’s RECORD under ply put, Bill Lee, like President Clin- student organization? A family in Cali- ‘‘Statements on Introduced Bills and ton, is outside the mainstream of fornia? No. I’ll tell you who filed the Joint Resolutions.’’) American civil rights law, the very complaint that launched this Federal Mr. AKAKA. I yield the floor. laws he would be charged with enforc- investigation: Bill Lann Lee, as head of Mr. SESSIONS addressed the Chair. ing. the Western Office of the NAACP Legal The PRESIDING OFFICER (Mr. While the American people and the Defense and Education Fund. ABRAHAM). The Senator from Alabama. Federal judiciary have steadily moved And, it does not end there. The Labor f toward a color-blind ideal, Bill Lee has Department has also joined the pile-on clung to a policy of racial preferences NOMINATION OF BILL LANN LEE to punish California for its decision to and spoils. Bill Lann Lee strongly ad- push for a colorblind society. DOL is Mr. SESSIONS. Mr. President, the vocates racial and gender preferences investigating the charge that U.C. position of Assistant Attorney General which are, in effect, virtually quotas in graduate schools are committing em- for Civil Rights is important to our Na- virtually every area of our society, in- ployment discrimination against the tion. The most important reason is cluding college admissions, congres- minorities who are not accepted into what it signals about the direction the sional voting districts and employ- U.C. graduate schools, and thus, not President plans to take on key civil ment. able to apply for campus jobs. rights issues of the day. I believe a nation that draws voting And where did this complaint origi- In my opinion, this Nation is moving districts on the basis of race, that uses nate? Again, it wasn’t a student. It was in the right direction on civil rights. race as a factor in college admissions Bill Lann Lee and his legal defense We have gone through a turbulent pe- and hiring and promotion decisions is, fund filing another complaint launch- riod where legal segregation has now in fact, destined to have unnecessary ing yet another federally funded inves- been ended, and we are now ending a racial strife and hostility and it does tigation of race-neutral policies based period during which the courts have not bind us together as a nation. on yet another legal theory that is out- used racial preferences and remedies to In my opinion, it would be unwise for side the boundaries of both the Com- cure certain aspects of past discrimina- the Senate to confirm Mr. Lee as As- mission and the courts. tion. sistant Attorney General for Civil And, what is the administration’s While this procedure can be defended Rights. The Assistant Attorney Gen- threatened sanction against the Uni- perhaps in the short run, particularly eral for Civil Rights is one of the most