Appointment of Lee a constitutional farce


"I have done my best to work with the United States Senate in an entirely constitutional way. But we had to get somebody into the Civil Rights Division."

-- President Clinton, Dec. 15, 1997

WASHINGTON -- A year has passed since President Clinton accompanied his appointment of Bill Lann Lee as assistant attorney general for civil rights -- as "acting" assistant attorney general in perpetuity -- with that breezy acknowledgment: The appointment was not "entirely constitutional."

This year the nation has become used to the mincing language by which Mr. Clinton describes his lawlessness. However, it is worth remembering that even last December there was nothing memorable about that day.

There was no indignation about Mr. Clinton's offhand admission that he considers respect for the law, including the Constitution and his oath of office, as merely optional. There was virtual silence from the Senate, silence that, 12 months later, has special pertinence. The Senate, which soon may be a jury judging Mr. Clinton's illegalities, was -- is -- fully complicit in the lawlessness of the Lee appointment.

Indeed, the Senate is the most culpable party. The Framers counted on the constitutional order being preserved not just, or even primarily, or perhaps even significantly, by the virtue of the political class. Rather, the Framers counted on countervailing rivalries and jealousies within that class.

They assumed the system of separation of powers would be preserved by each institution'sprickly vigilance in defense of its prerogatives. Which is why Justice Joseph Story said "no serious abuse of power can take place without the cooperation of two coordinate branches of the government."

Instead, in a disregard of law more lastingly significant than Mr. Clinton's criminality, the Senate acquiesced like so many sheep -- well, sheep with a capacity to stamp their little hooves and pout -- in the erasure of a power central to the constitutional system of checks and balances, its power to advise and consent to presidential appointees.

On July 21, 1997, Mr. Clinton submitted Mr. Lee's nomination to the Senate. Mr. Lee's expansive interpretations of civil rights laws were unacceptable to the Judiciary Committee. On Nov. 13, 1997, the Senate adjourned without the committee having voted on the nomination. Mr. Lee's supporters had blocked a vote to avoid a formal nonrecommendation to the full Senate.

Mr. Clinton could then have given Mr. Lee a recess appointment, but it would have expired at the end of the next congressional session. Instead, in a series of maneuvers that were as nimble as they were dishonest -- does this remind you of Mr. Clinton's grand jury testimony? -- Mr. Clinton placed Mr. Lee in office. He did so despite the fact that the Vacancies Act, the only law that empowers presidents to appoint temporary attorneys general, prohibits Mr. Lee from serving.

For a lucid explanation of this murky, tawdry transaction, see Steven J. Duffield and James C. Ho, "The Illegal Appointment of Bill Lann Lee," in the Texas Review of Law & Politics. But regarding the basic fact of its anti-constitutional nature, see Mr. Clinton's comment above.

In 1989, President Bush nominated William Lucas, a black conservative, to the position Mr. Lee now occupies. When the nomination died in the Democratic-controlled committee, Mr. Bush considered a recess appointment, but decided to respect the Senate's constitutional role.

West Virginia's Sen. Robert Byrd only the third senator ever elected to seven six-year terms, presents himself as Horatius at the bridge, defending Senate prerogatives. Displeased by the Lee episode, he has helped tighten the Vacancies Act. But when Mr. Byrd thought President Reagan was using recess appointments to vitiate the Senate's advise-and-consent powers, Mr. Byrd was more forceful: He blocked many nominations and promotions until Mr. Reagan promised to sin no more.

The Senate's refusal to insist upon its rights regarding Mr. Lee is just one more reason for rank-and-file Republicans to wonder why they are Republicans, and why they should care deeply about keeping the Senate Republican. It also is a reason for all Americans to recognize the seamlessness of recent events.

Last Dec. 15 was a busy day for Mr. Clinton, who, when not "entirely" respecting the Constitution, was receiving from Paula Jones' lawyers a request for documents "related to communications between the President and Monica Lewinsky." This was the first discovery request to mention Ms. Lewinsky's name.

Sixteen days before this low, dishonest year dawned, Mr. Clinton, in the Lee case, cheekily announced his contempt for law. This was before his glandular life reduced him to exercising that contempt in defense of his endless adolescence. Those who say his sex-related perjuries are "private" matters should consider: His low crimes of the last year flow from the same character displayed in his public behavior regarding Mr. Lee.

George F. Will is a syndicated columnist.

Pub Date: 12/13/98

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