- The Washington Times - Thursday, December 6, 2001

The chairman of the U.S. Commission on Civil Rights has refused to accept President Bush's nominee to the commission and has warned the White House that it will need federal marshals to seat the new member.
Chairman Mary Frances Berry told White House Counsel Al Gonzales that she would defy the president by refusing to swear in his nominee, Peter Kirsanow, a Cleveland lawyer and former chairman of the Center for New Black Leadership, Mr. Gonzales said.
Mr. Bush nominated Mr. Kirsanow to replace Victoria Wilson, who was appointed by President Clinton on Jan. 13, 2000, to fill an unexpired, six-year term that ended Nov. 29. Miss Wilson has hired an attorney to defend her seat on the panel and plans to attend today's meeting as a commission member.
The seat is key because if it goes to Mr. Kirsanow, the eight commissioners will be split 4-4 along party lines. The deadlock would end the outright authority Miss Berry enjoyed since 1992, when Democrats became the majority on a board created in 1957 with a bipartisan charter.
Miss Berry threw down the gauntlet during a heated phone conversation on Tuesday with Mr. Gonzales, the president's government attorney.
"You informed me that you do not consider yourself to be bound by opinions of the Department of Justice," Mr. Gonzales said yesterday in a letter to Miss Berry. "Nor do you intend to abide by them or to follow the directives of the president in this matter."
Miss Berry vowed she "will refuse to administer the oath of office to the president's appointee," Mr. Gonzales said.
He advised Miss Berry that any federal official authorized to administer oaths could swear in Mr. Kirsanow.
"Finally, you stated that, even if Ms. Wilson's successor has been lawfully appointed and has taken the oath of office, you will refuse to allow him to be seated at the commission's next meeting," Mr. Gonzales wrote. "You went so far as to state that it would require the presence of federal marshals to seat him.
"I respectfully urge you to abandon this confrontational and legally untenable position," he said.
Mr. Gonzales warned Miss Berry that "any actions blocking" Mr. Kirsanow from taking his seat "would, in my opinion, violate the law."
"The president expects his appointee to take office upon taking the oath and to attend upcoming meetings as a duly appointed commissioner," he said. "The president also expects all sworn officers of the United States government to follow the law."
Miss Berry told the Associated Press that the Civil Rights Commission should be an independent body that reviews all other government agencies rather than one that is reviewed by them.
The dispute is "about the independence and integrity of the commission. It's a unique agency a watchdog over the enforcement of civil rights by the president, the Justice Department and all federal agencies," she said.
The federal law that established the Civil Rights Commission has no provision at all for recess appointments or for one person serving out another's term. Other such federal panels as the Federal Trade Commission, the Federal Communications Commission, and the Equal Employment Opportunity Commission all have explicit language in their charters stating that should a panel member be unable to serve, someone can be appointed to fill the remainder of the term.
A White House official allowed The Washington Times to see the letter appointing Miss Wilson to the commission. The letter, written by a Clinton administration official, states specifically that her membership on the panel would expire Nov. 29, 2001.
Mr. Gonzales said there is no record of Miss Wilson asking the White House clerk to alter the appointment letter to specify a six-year term.
A senior administration official told The Times the White House had begun calling members of Congress to enlist their support in the showdown. White House spokeswoman Anne Womack said Miss Wilson no longer was considered a member of the commission.
"Her commission has expired," Miss Womack said. "We would expect her to abide by the law, and the commission to abide by the law."
Rep. Steve Chabot, Ohio Republican and co-chairman of the House subcommittee on the Constitution, agreed. He said that because Miss Wilson was named to complete the term of Judge A. Leon Higginbotham Jr., her tenure expired with the end of the judge's term, on Nov. 29. Judge Higginbotham died in 1998.
"Berry has been advised by the office of Legal Counsel that the commissioner's term has ended," Mr. Chabot said. "To have Wilson keep this seat beyond her term is a lawless action."
Commission staff director Les Jin did not return calls.
"I think that the statute is clear: She is to serve six years," said Commissioner Cruz Reynoso, a Democrat. "I can't imagine this being an issue, but if it becomes one, I would think we should get a declarative judgment before someone is embarrassed by an appointment that takes on political overtones."
Miss Wilson, who is vice president and associate publisher at Alfred A. Knopf, has engaged New York civil rights lawyer Leon Friedman to represent her in the dispute. Mr. Friedman said he may attend tomorrow's meeting with his client.
"She will show up at the meeting, and someone will have to make a decision," Mr. Friedman said. "She is a commissioner for a six-year term."
Mr. Bush has made one appointment so far to the commission. Jennifer Cabranes Braceras, a Boston lawyer and a Republican, was named last month to a six-year term to succeed Yvonne Lee, a Democrat.
Commissioners are to serve six years. But commission general counselor, Mr. Jin who has supported past views of Miss Berry says that term duration applies even to those who are named to complete the terms of those who cannot continue.
Mr. Chabot and Rep. F. James Sensenbrenner Jr., Wisconsin Republican and co-chairman of the Constitution subcommittee, urged the president in a Nov. 14 letter to make an appointment to fill Miss Wilson's post.
"Recently, in a letter to the Speaker of the House of Representatives, Commission Staff Director Les Jin appeared to advance a theory that the commissioners' six-year terms are personal to them," the letter said. "In other words, according to Mr. Jin, a commissioner who was appointed to fill a vacancy due to death, incapacity, or resignation of another commissioner, would be appointed for a six-year term from the date of the new commissioner's appointment date, not just to complete the term of the commissioner whose office became vacant.
"If this interpretation were correct, the term of Commissioner Victoria Wilson would extend well beyond November 29, 2001, the expiration date of the term of Judge Leon Higginbotham whose term Commissioner Wilson was appointed to complete. Such an interpretation would therefore permit you to make only one appointment to the Commission later this year."

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