Gray's loose cannon

WHEN THE White House last week circulated and the next day withdrew a directive canceling the fair employment regulations of the last 20 years, many saw the episode as an example of President Bush's uncertainty on domestic affairs. But there was deeper reason for concern.

A drastic change in long-established policy was prepared in secret in the office of the counsel to the president, C. Boyden Gray. There was no consultation with concerned Cabinet departments, much less with Congress.


The intention was to spring the change on the public as a fait accompli, in a statement the president would issue as he signed the new civil rights bill. On the afternoon before the signing ceremony copies were sent to Cabinet secretaries. They were outraged, the story leaked, White House spokesmen said President Bush had not approved and the plan came unstuck.

Boyden Gray has been close to George Bush for years, and it is quite usual for a president to have a friend advise him as counsel. But Gray and his staff have made the office into something more: an engine for making policy without accountability.


The White House counsel's office, remote as it is from the public and even from the institutions of government, has no regular way getting feedback. The Justice Department has roots in the legal community -- and in the realities of the society. If we had had a serious attorney general in recent years, he would not have let Gray exercise such power as a legal draftsman.

The danger of this unaccountable office making major policy is more serious when the policy concerns race. For Gray is seemingly obsessed with that subject.

He planted in Bush's mind the idea that the civil rights bill would produce "quotas." For two years, in numerous negotiations, Gray resisted all efforts at compromise. When finally politics forced the president to accept a compromise, Gray wrote an article for the Washington Post making a tortured argument that his view had won.

Gray has a young assistant who is equally fanatical on the subject. His name is Nelson Lund, and he helped to draft the statement that Bush was supposed to make last week, undoing the fair employment rules.

Lund was a law clerk to Justice Sandra Day O'Connor of the Supreme Court in 1987-88. There he worked on an opinion that sought to shift the burden of proof in job discrimination cases from the employer to the employee.

A majority of the Court did not agree to the burden-shifting at that time, but the new rule was adopted later in the case of Wards Cove v. Atonio. One thing the new civil rights law does is overrule the Wards Cove decision and shift the burden of proof back to the employer.

Conservatives like to argue that the Supreme Court should defer to the elected branches of government. Yet here is someone FTC who as a law clerk worked to change the established meaning of civil rights law without further congressional action -- and then carried on that effort in an unaccountable White House office.

Evidently Nelson Lund is one of that brand of modern right-wing radicals who are fundamentally disillusioned with democracy. The George the Third Society, I call them. They want the president to govern without congressional interference. Now it appears they are ready to dispense with most of the executive branch, too, and run things from inside the White House.


For Boyden Gray and his office to try to carry off a coup on fair employment regulations at a moment when the country is so edgy on race shows the danger of such a rootless office. It was the height of irresponsibility.

The episode also shows how profoundly the Republican Party has changed on racial justice. Some of the regulations that Gray and his men were going to abolish were written by the Nixon administration in 1969 -- and defended by the solicitor of the Labor Department, Laurence H. Silberman, now a conservative judge on the U.S. Court of Appeals for the District of Columbia.

Boyden Gray is said to resent any idea that he is a racist, and he is no doubt sincere in denying it. But I think he has done as much as any American to arouse racial feelings in this country in recent years. By their fruits ye shall know them.