A CIVIL RIGHTS FIGHT November 5, 1997 NEWSHOUR TRANSCRIPT

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The nomination of Mr. Bill Lann Lee for the position of Assistant Attorney General for Civil Rights has kept the spotlight on Proposition 209. After a background report by Spencer Michels, Jim Lehrer and guests look at both the Senate and California perspectives on the nomination and the legislation.

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A RealAudio version of this segment is available. NEWSHOUR LINKS: November 3, 1997: The Supreme Court declines to hear a challenge to California's Proposition 209, the 1996 initiative which overturned affirmative action in the state. September 30, 1997: Presidential race advisers discuss Clinton's One America initiative. July 4, 1997: Online Forum The Rev. Suzan Johnson Cook joins Angela Oh in responding to the first online forum on race relations. June 16, 1997: Experts analyze the merits of the President's weekend speech on race relations. May 20, 1997: Betty Ann Bowser reports on the effects of dropping affirmative action programs in Texas universities. May 20, 1997: The authors of All That We Can Be: Black Leadership and Racial Integration the Army Way discuss social success in the military. April 9, 1997: A federal court in California upholds a state ban on affirmative action programs. Feb. 21, 1997: The Online NewsHour hosts a forum on the declining economic power of Hispanic Americans. Jan. 15, 1996: Charlayne Hunter-Gault talks to Benjamin DeMott about his book The Trouble with Friendship: Why Americans Can't Think Straight about Race. Browse the NewsHour's coverage of Race Relations.

JIM LEHRER: And we join the Bill Lann Lee debate now with two members of that Senate Judiciary Committee: Republican Jeff Sessions of Alabama and Patrick Leahy of Vermont, the ranking Democrat.

Sen. Sessions, you are opposed to the Lee nomination, is that correct, sir?

The view from the hill.

SEN. JEFF SESSIONS, (R) Alabama: I have decided to oppose his nomination regretfully. He's certainly a fine person of good legal ability, but two reasons led me to that. As Sen. Hatch just said, this is not an itty-bitty issue, this California civil rights initiative. It was passed by the people. It mirrors the 14th Amendment. It mirrors the Civil Rights Act of 1964. The 9th circuit, the most liberal circuit in America, just ruled that it was plainly constitutional, and the Supreme Court has refused to review that decision. Mr. Lee continues to believe it is unconstitutional and file a lawsuit to have the court declare it so. He also personally opposes the recent Supreme Court decision in Adarand, which eliminates set asides basically in most federal programs as being in violation of the Constitution. This is a seminal opinion, and he has indicated he opposes that. So the chief civil rights officer should, as the President said, enforce the law. The problem is his belief in the law and the President's is contrary to the certain state of the law.

JIM LEHRER: Sen. Leahy, what's your view of the Lee nomination?

SEN. PATRICK LEAHY, (D) Vermont: Well, I think that somehow the Republican caucuses decided to make Mr. Lee a trophy to the ultra right. The fact of the matter is Bill Lann Lee is one of the most qualified people ever to become before the Judiciary Committee, certainly in the 20 years that I've been there--far more qualified than people who are routinely confirmed. He's also the--one of the very few Asian-Americans to come before the committee but certainly the most qualified. It's an amazing thing what's happening. They say, well, we have to hold him back because he supports Proposition 209. Well, that ignores two things. One, he has said that he will not get involved in anything with 209; he'll recuse himself. Secondly, it's a moot point because the Supreme Court has ruled against that. The other thing is today the same Judiciary Committee with Seth Waxman comes before it for Solicitor General, taking virtually the same positions as Bill Lann Lee, and they say, he's fine, he can go through. Bill Lann Lee is saying that he will support the position of the President of the United States. The President of the United States won the election. I'm afraid that some of my friends on the Judiciary Committee haven't gotten over the fact that not only did Bill Clinton win once; he won twice, and he is entitled to have people who support his position.

JIM LEHRER: Sen. Sessions, what about that? Sen. Boxer and Mike McCurry, the President's spokesman, have made the same point; that Bill Lann Lee's views are identical with the President of the United States, for whom he will work. What's the problem?

SEN. JEFF SESSIONS: Well, I think the people first have not come to realize that the President of the United States on the most flimsy legal basis actually has sought to overturn the California civil rights initiative. I think this issue does reflect a public policy question. It's not an itty-bitty issue. What does the Senate of the United States believe about the current state of the law, and do we believe the nominee for the civil rights division ought to be willing to enforce that law as written? And I think there's serious doubt about that in this nomination. And that's why it went from a very positive thing prior to his testimony to, I think, doubtful at this point.

JIM LEHRER: Well, Senator, did it--yes, go ahead, Sen. Leahy.

Senator Leahy: "What you have is a handful of white males sitting on the Senate Judiciary Committee saying this Asian-American is not qualified, even though he's one of the most qualified people to come forth."

SEN. PATRICK LEAHY: I was just going to say if the--if those on the Judiciary Committee really feel this is the case, then let the whole Senate vote on it. What you have is a handful of white males sitting on the Senate Judiciary Committee saying this Asian-American is not qualified, even though he's one of the most qualified people to come forth. Why is he not qualified? Because he supports the President of the United States, who is going to appoint him. He has also said under oath he will uphold the law. This is a man who has been praised by even people who have been on the other side of court cases from him because he always tries to seek consensus, but that is because--that is why they don't dare let it go to the full Senate because they know the full Senate would vote to confirm him. They would not allow this travesty to happen.

JIM LEHRER: Sen. Sessions, is it your position you do not believe Mr. Lee when he says he will uphold the law as interpreted by the courts?

SEN. JEFF SESSIONS: Well, I think he says he opposes the Adarand decision, and his definition of the holding in Adarand is different from the decision, itself. Adarand--the court says you must meet the strictest of scrutiny before you can have a racial set-aside. In his testimony he dismissed that and defined that away as not a very significant ruling, almost as if it was an insignificant ruling. But it is a historic ruling. We need the 250 lawyers in the Department of Justice to be working in accord with the current law, not conducting a rear guard action to try to maintain failed policies that have been rejected by the court.

JIM LEHRER: Sen. Sessions, what would you say to those who suggest that in order to meet that criteria, the President would have to nominate somebody who disagrees with his own policy, is that right?

SEN. JEFF SESSIONS: Well, first of all, I think we are dealing with the President's policy. The Senate has the right to confirm or reject a nominee for the disposition. And I think the policies, we are sending, in effect, a message to the President. At least, I feel I am with my vote that this is not a good policy and you need to have attorneys on your staff who will enforce the law.

JIM LEHRER: What's wrong with that, Sen. Leahy?

SEN. PATRICK LEAHY: Well, what has happened is that they don't really believe this. I mean, Bill Lann Lee has become a trophy for fund-raising letters of the ultra right on this issue. The fact of the matter is even the most senior member of the United States Senate--Sen. Strom Thurmond--before this said in testimony before the Senate Judiciary that he felt that the whole Senate should vote on such questions that there's a controversy. In fact, he said, "I think the Senate's entitled to the recommendation, given an opportunity, whether it's a majority or minority, to send the nomination to the Senate." All of a sudden, he said, whoops, doesn't fit with the fund-raising letters; we can't do that, sorry, Bill Lann Lee , next guy maybe will fit our profile better.

JIM LEHRER: Sen. Sessions, is this a trophy to the ultra right?

A trophy for the ultra right?

SEN. JEFF SESSIONS: No, it's not. I think there was a feeling before the hearings that Mr. Lee would probably be confirmed. There were going to be some questions about these issues, and I think as the hearing developed, it became a strong feeling that he was out of the mainstream of the current law in America. It's certainly not a racial thing. We had a lady from--a Chinese-American testify very strongly against Mr. Lee, stood very aggressively against his positions. We had a lady earlier on in the year testify--Chinese-American in San Francisco--told about how her child could not go to a certain school because he was Chinese-American. He met all the other qualifications, but they said there were too many in that school. And that is not the way we need to--

The California view.

JIM LEHRER: All right. Don't go away. Gentlemen, we'll be back to you in just a moment, but first I want to broaden this out a little bit and to go to the California view of affirmative action that comes from Ward Connerly, a member of the California Board of Regents, who was chairman of the Proposition 209 campaign, and Willie Brown, who is the Democratic mayor of San Francisco.

First, on the Lee nomination, Mr. Connerly, do you have a position on that?

WARD CONNERLY, Proposition 209 Proponent: I sure do, Mr. Lehrer, and I think that the confirmation should be denied. This is about civil rights, and civil rights are individual rights. They're not rights for groups, as Mr. Lee seems to characterize them. He opposed Proposition 209 on the grounds that the 14th Amendment was for women and minorities. And that, no matter how qualified he is, represents a point of view that is totally at odds with where the courts are going and what the American people believe, and what fundamentally this nation stands for.

JIM LEHRER: Mayor Brown?

MAYOR WILLIE BROWN, San Francisco: I believe that the Lee nomination should be confirmed. You're only going to get from Bill Clinton people that followed Bill Clinton's policies. This government is organized so that if individuals are otherwise well qualified, you would expect them to carry the views of the administration that appoints them. I don't understand why anybody would think that Bill Clinton would ever appoint Ward Connerly, or, for that matter, Mr. Sessions. That just would not happen. You wouldn't expect George Bush or Ronald Reagan to appoint Willie Brown. Why would you expect Bill Clinton to appoint one of those persons, inconsistent with his views? These people are just disguising what they really believe in, and that's Plessey Vs. Ferguson--separate but equal.

JIM LEHRER: Is that what you're doing, Mr. Connerly?

WARD CONNERLY: No, sir, it is not. If we accept Mr. Brown's philosophy here, the Senate becomes nothing more than a rubber stamp; whomever the President sends up, put him in. Mr. Lee's philosophy is the wrong philosophy. Mr. Clinton's philosophy is the wrong philosophy; and if the Senate confirmation process is going to be worth diddly squat, they need to exercise their responsibility and to vote thumbs down on him.

JIM LEHRER: Well, there's been--

MAYOR WILLIE BROWN: Mr. Connerly is totally wrong, Mr. Lehrer. He knows he's wrong. How could you have a government that elected Bill Clinton president if then Bill Clinton was going to turn around and abandon his view s and appoint people that have views contrary to his? He could never do the job that he was hired to do. The Senate's evaluative process simply reviews whether or not persons have the qualifications--not what they believe in--but the qualifications. And that's the way this thing ought to be. It should not be a litmus test on whether or not they agree with Ward Connerly.

JIM LEHRER: Let's move from the Lee nomination, gentlemen, to what's happening in California on 209. Mayor Brown, what does the Supreme Court decision not to review the case mean for you and the way you're going to operate in the city of San Francisco?

MAYOR WILLIE BROWN: Well, in the city and county of San Francisco it means very little. We don't make decisions based on preference. We don't make decisions based on quotas. We make decisions based on whether or not somebody has been discriminated against on the basis of race, on the basis of age, on the basis of gender, on the basis of sexual orientation. Those are the bases on which we make our decisions. And we will continue to make those decisions. Every court decision has always said, if there is discrimination, you have a right to fashion a relief. And that's what we do in the city, and it works very well.

JIM LEHRER: And 209 isn't going to change anything?

MAYOR WILLIE BROWN: Not at all.

JIM LEHRER: Mr. Connerly, is that a correct reading?

WARD CONNERLY: If that is the case, I don't know why the mayor's fighting it then; if it isn't going to change anything and if all the mayor is doing is practicing equal opportunity, if you apply that to 209, which says that the state shall not discriminate against or grant preferential treatment, the mayor ought to be a cheerleader for 209, because that's all it's doing. But I think that's the way the mayor's interpreting it.

MAYOR WILLIE BROWN: It's very clear, Mr. Connerly, that the end result of 209 in the bigger world--one example, the University of California Law School at Berkeley--those administrators have viewed their policies as being one that fit your description of what they are. And the end result has been fewer racial minorities, as a matter of fact, dramatically fewer racial minorities. In San Diego County, with reference to the contract in process, it's gone down to nil as a result of the existence of 209. So why would I be interested? Not so much from San Francisco's standpoint, Mr. Connerly, I'm not that narrow; I'm far more interested in what happens to the whole world. I know--

WARD CONNERLY: So am I, Mr. Brown.

MAYOR WILLIE BROWN: I know how Willie Brown got to where he got. Willie Brown got to where he got because somebody recognized the potential talent in Willie Brown, and even when there wasn't affirmative action, someone affirmatively reached out and said, give him a chance; enter him into the university system and I think he can perform. And I did, and the rest is history.

JIM LEHRER: Let me--

MAYOR WILLIE BROWN: That's what I want to happen all over the state of California, contrary to what people and how people are interpreting 209.

JIM LEHRER: Now, Mr. Connerly, how do you believe 209 is going to affect things as of tomorrow already in the state of California as a result of what the Supreme Court did?

Ward Connerly: "I don't think that black people or Latinos need a preference in order to compete."

WARD CONNERLY: Initially, to the extent that we're giving preferences, Mr. Lehrer, the numbers are going to go down. At Boalt Hall we're not discriminating against blacks and Latinos. The sad reality is that in the past we have been giving a major preference to students. Once we take that preference away obviously the numbers go down. But if we believe that everybody is capable--every group is capable of competing, without the benefit of preferences, then eventually all of us, all of us are going to be able to participate. I have faith in that. I believe that that will happen. I don't think that black people or Latinos need a preference in order to compete.

JIM LEHRER: Excuse me just a minute, Mayor. I want to nationalize this a little bit before we go. There was a vote in Houston yesterday, Mr. Connerly, on set asides which went the other way. The first vote like that to--how do you read--do you read that as a setback for your movement?

WARD CONNERLY: I think it's a minor setback. We had a lot of momentum. It would have been nice if we had won that, sir, but the fact is that the language, itself, which the mayor of that city and the city council changed to reflect the way the polls were showing the voters were leaning, the outcome of that language had a lot to do with the election; also the demographics of Houston are radically different from what they are in California as a whole. So yes, it was a setback, a minor setback. But in the total scheme of things it really doesn't matter very much long-term.

JIM LEHRER: Why? Because you believe you have the momentum, doing away with racial preferences?

WARD CONNERLY: Mr. Lehrer, I have no doubt that in 20 years we'll look back on this and wonder why it took so long. The courts are going this way. Time after time after time it's clear that the American people don't want preferences, and no matter how much we fuzz up the debate and say this is just about equal opportunity, or that it's about affirmative action, the reality is we're talking about preferences And that's what 209 was about. And that's what the Houston civil rights initiative was about.

JIM LEHRER: Mayor Brown, do you agree? Go ahead. Do you agree that--

MAYOR WILLIE BROWN: No. I disagree with him.

JIM LEHRER: Okay.

MAYOR WILLIE BROWN: I think the Houston vote was a very significant vote frankly for America, not just for the issue of 209. I believe that when Houston said, "We know outreach. We know an understanding of what has been previous in terms of your history. We know all of that represents a level of racism that's unacceptable in this state and in this city. That's Texas. And I'm glad that they did that because maybe just maybe it will be instructional to California. It took from the time of the Civil War and the Emancipation Proclamation till 1954 for America to come to grips with these pious words as being totally meaningless from the standpoint of being able to make any movement. From 1954, when Earl Warren wrote his famous Brown vs. The Board of Education, a Topeka, Kansas, decision, till the present day, incredible progress has been made. We've had the Voting Rights Act; the Civil Rights Act; and a whole series of things.

JIM LEHRER: Let me--

MAYOR WILLIE BROWN: All of that represents something that's positive. Mr. Connerly and his crowd would like to go back to pre-1954.

WARD CONNERLY: No, sir, we would not. That's ridiculous!

JIM LEHRER: Let me ask the Senators real quickly--Sen. Sessions first and then Sen. Leahy. You heard what Mr. Connerly said; that 20 years from now this will seem like a blip; there will be no more racial preferences or affirmative action. Do you agree, Sen. Sessions?

SEN. JEFF SESSIONS: I tend to agree. I think the Supreme Court has looked down the long road of American history, and they are moving us away from dispensing goods and services in America based on race. They know that's not a principle that will stand the test of time. And I believe he's correct, and I think we're going to have a healthier America; and we're going to have less competition and hostility among the races also.

JIM LEHRER: Sen. Leahy, like it or not, is that where the movement is?

SEN. PATRICK LEAHY: Mr. Connerly said everybody ought to have an equal chance, but yet, he prefers a situation where nine Senators--nine--can block the Bill Lann Lee nomination. He's unwilling to see it go to the floor of the United States Senate. The Republicans have a majority in the Senate, but they are unwilling because they want to make a trophy out of him, they are unwilling to allow them all to vote for him. And, you know the fact is if they really feel this way, let ‘em go forward. They're unwilling--the Republican leadership is unwilling to bring their own affirmative action legislation forward. 209 is a moot point, so how do you make some point? Well, you do your best to stab Bill Lann Lee. And that's exactly what they've done.

JIM LEHRER: But, Sen. Leahy, what about to the broader point of where the movement is now on affirmative action, how do you read the wins?

SEN. PATRICK LEAHY: Well, we obviously, I read the win in the Senate that a small handful are afraid to let the whole Senate vote on that issue, and they're using Bill Lann Lee to stop it. They seem to be afraid of the issue coming before all Senators--Republicans and Democrats alike.

JIM LEHRER: How do you feel about the wins of the public and the courts?

SEN. PATRICK LEAHY: Well, you see, the court upheld 209--made a moot point out of 209--and then the Houston voters went the other way, and then the Supreme Court goes yet a third way, saying that narrowly, narrowly drawn affirmative actions are okay. And I think that's probably where we're going to end up, in that last point.

JIM LEHRER: Mr. Connerly, why did you make the prediction--your 20-year prediction--that--why do you believe that you've got the wind behind you?

WARD CONNERLY: Well, sir, everybody that I talk to--not everybody but clearly wherever I go, whether it's Ohio, whether it's Texas, California, you talk to most people, black, white, Latino, and they generally say, we recognize that preferences are wrong and we know that a lot of the affirmative action programs have been wrong. Maybe we want to amend it. But in the final analysis I think most of us have come to the conclusion that this is wrong, and we can't go on doing this forever. And so I think it's just a matter of time before we reach consensus, and I even hold out hope that someday Mr. Brown will see the light and say these programs have to be changed; they have to be eliminated where they are like San Francisco; and I think it's just a matter of time.

JIM LEHRER: Matter of time, Mayor Brown?

MAYOR WILLIE BROWN: No. I think Mr. Connerly is wrong. Time is against those of us who seek equal opportunity. Mr. Connerly is aware of that. It demonstrated itself at the University of California--Boalt Hall. It's demonstrated itself in San Diego. It's demonstrated itself all over the nation. Mr. Connerly is conscious of that. And to say 20 years from today there will be fewer racial minorities holding any position of significance in this nation because this nation is basically steeped in a long history of discriminating, discriminating on the basis of color, on the basis of age, and on the basis of gender. And that process doesn't lend itself to anything, except affirmative action.

JIM LEHRER: Well, we have to leave it there, gentlemen. Thank you all four very much.

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