Blocked by Republican senators last week, the White House is considering an unusual end run around Congress to install Bill Lann Lee as the assistant attorney general for civil rights.
While it's rarely done, the president can make an interim appointment while Congress is in recess. Such a move would effectively put Mr. Lee in office for two years.
The administration's determination to thwart GOP opposition indicates how strongly President Clinton feels about Lee - and how the once butter-smooth nomination process has deteriorated into partisan politics.
The traditional appointment system, known as "senatorial courtesy," has developed over time between the Senate and America's 42 presidents. It allows the nation's chief executive great leeway in filling appointed positions as long as nominees are not significantly flawed.
But the confrontation over Lee, a California attorney with 20 years of civil rights experience, is yet another indication that the historical cooperation is fading. In the past three years, Senate committee chairmen have scrutinized the records and ideologies of many a nominee. If the current trend continues, some say, it could create an ill will that will carry into future administrations.
What's happening more often is that a judgment is being cast on nominees like Lee, says Norman Ornstein at the American Enterprise Institute, a Washington think tank. Senators, he says, are thinking, "Hey, we like him, he's ethical, competent. This guy is sworn to follow the law and the president's policies. But we don't like what he wants to do, and we aren't going to let him in."
The list of high-level rebukes to the president has grown long.
Surgeon general nominee Henry Foster was denied over revelations he had performed abortions. The current nominee, David Satcher, is also in trouble. Alexis Herman had a long wait to become head of the Commerce Department. Former Massachusetts Gov. William Weld lost a fight with North Carolina Sen. Jesse Helms (R) in the Foreign Relations Committee. And last week, James C. Hormel learned his ambassadorship to Luxembourg is on hold over his openly homosexual status.
White House spokesman Mike McCurry last week chastised Republicans for their handling of the process, arguing the president has the power, under the Constitution, to appoint officials. The Senate's role, he said, is to advise and consent.
In denying the Lee nomination, Senate judiciary chairman Orrin Hatch (R) of Utah suggested Lee would be an advocate for affirmative action as a means to counter discrimination in the marketplace. Lee has said he would not.
SCHOLARS agree a president has a right to name people to carry out his policies. The question is, is it legitimate to deny him so many times?
"The president does not have a right to name anyone he wants. That's why there is a confirmation process," says George Edwards III, director of presidential studies at Texas A&M University in College Station. "But everything in our system depends on good will and balance, and recently there has been much less."
Still, the Constitution does not guarantee good manners. "This is not scandalously savage or historically unprecedented," says William Van Alstyne, a constitutional law expert at Duke University in Durham, N.C.
But Republican concern is growing that the current wave of denials could have negative political implications. Pennsylvania Sen. Arlen Specter (R) warns that failure to vote on Lee, the son of Chinese immigrants who own a New York laundry, may hurt Republicans in the next presidential election cycle.