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Clinton Administration Split Over Issue of Lee Nomination

By Roberto Suro
and Peter Baker
The Washington Post

A sharp, sometimes intense debate has broken out within the Clinton administration over how aggressively to push Bill Lann Lee's nomination to the nation's top civil rights job.

Lee's nomination failed in the Senate Judiciary Committee last Thursday because of opposition from Republicans who consider the California attorney an activist who pushes the law too far in advocating the use of racial preferences in affirmative action. Angry Democrats argued that Republicans mischaracterized Lee's positions and blocked his nomination solely to score points with their most conservative constituencies.

Since then, administration officials have engaged in almost daily discussions about what step to take next, including the possibility of employing a little-known constitutional device - a recess appointment - to give Lee the post on a temporary basis while Congress is out of session. While some White House officials favor such an appointment as a bold show of resolve, many in the Justice Department fear that the cost of defying the Republican-led Congress is simply not worth paying.

Much more than tactical questions are involved in the strategizing, officials said. In deciding how to proceed on Lee, the administration will help shape its approach to civil rights issues for the rest of President Clinton's term and set a framework for Democratic candidates in elections next year and in 2000. The decision on Lee, many believe, will color relations between the executive branch and Republicans in Congress, especially the Senate, all through next year.

One camp within the administration believes the White House should pursue a recess appointment to demonstrate it is not intimidated by Republican opposition to a man they consider imminently qualified and whose stand mirrors the president's.

"I assure you he will be the next assistant attorney general for civil rights," said Erskine B. Bowles, the president's chief of staff, the day after the Senate Judiciary Committee failed to vote on the Lee nomination.

Justice Department officials led by Attorney General Janet Reno intervened last Friday with a caution. While still supporting Lee, they argued that circumventing Congress with a recess appointment after losing in the parliamentary arena would infuriate Republicans. Aides said Reno worried that other nominations and legislative proposals would be stalled, and Lee might become a victim of payback, undergoing endless oversight hearings that would paralyze him and the civil rights division.

Senate Judiciary Committee Chairman Orrin G. Hatch, R-Utah, who led the opposition to Lee, said in an interview, "a recess appointment would be about the dumbest thing they could do." If Clinton put him in the job over the committee's objections, Lee's every official act "would be scrutinized, sometimes harshly," Hatch said, and the impact would extend far beyond him. "People would feel free to challenge the administration on everything that comes through the committee," Hatch said.

White House and Justice Department officials said Thursday that no decision on how to proceed with Lee had been made. The alternative to a recess appointment is to mount a political campaign to win over enough Republicans on the committee and in the Senate as a whole to ensure Lee's approval.

"It's a strategic call," said a Clinton aide, who asked not to be named. The thinking at the White House, he added, is that there might not be that much to lose in antagonizing Hatch and other Republicans on the Judiciary Committee because they already have been so slow in moving presidential nominations. "What are they going to do? Hold up more judges?" the aide asked sarcastically. "The reason you do this is the office is important and he's the right person."

The frustration with GOP attacks on Clinton appointees has grown in recent months and has made a recess appointment more palatable at the White House.