- The Washington Times - Friday, February 1, 2002

U.S. District Court Judge Gladys Kessler will decide a case next week that will determine the immediate political future of the U.S. Commission on Civil Rights, she said yesterday.

During a hearing that debated the intricacies of a statute on term lengths for the eight-member panel, each side argued that the wording in a 1994 revision of the statute favors their argument.

The case pits the Bush administration against Commissioner Victoria Wilson. Miss Wilson was appointed in January 2000 by President Clinton to succeed Judge A. Leon Higginbotham Jr., who died in office in 1998. She contends that her appointment was for a full six years. The Bush administration filed a lawsuit in December contending that the term ended in November, when Mr. Higgenbotham's tenure expired.

President Bush has appointed conservative Cleveland labor lawyer Peter Kirsanow to Miss Wilson's seat. But the Democratic commission majority, led by Chairman Mary Frances Berry, has refused to recognize Mr. Kirsanow. Miss Berry has joined the lawsuit with her own counsel as a third party.

The argument yesterday centered on interpretation of a disputed statute governing commission appointments, a statute that was passed by Congress in 1983 explicitly requiring staggered terms and amended in 1994 with less-specific language.

"All the parties here agree that in 1983 Congress set up six regularly staggered terms," Justice Department lawyer Susan Rudy said. "What we disagree about, your honor, is whether Congress abolished that system of staggered terms in 1994."

Leon Freidman, representing Miss Wilson, repeated his assertion several times regarding the 1994 amendment of the statute on staggered terms: "They took it out. There is no other way to interpret that law."

Staggered terms were implemented in 1983 after a legal struggle between Miss Berry and President Reagan, who sought to replace several sitting commissioners with his own. Miss Berry defeated the administration in court and then advocated staggered terms, intended to prevent any sitting president from gerrymandering the eight-member panel.

Judge Kessler peppered both lawyers with questions and comments, at one point noting to Miss Rudy that the original version of the 1994 statute read: "the terms of those in office will be six years, and the current staggering of terms shall continue in effect."

"That provision was not included in what was finally adopted by Congress. Is that right?" the judge asked.

"In part, your honor," Miss Rudy said. "What replaced that line had the same effect, which is that terms that the then-current commissioners were serving would continue."

She said the 1994 wording, without the explicit reference to staggering terms, was intended to make the statute simpler.

Miss Berry's attorney, Theodore Wells Jr., told Judge Kessler that interpreting the statute would be "dangerous" and that the 11 years that passed between the original statute and the 1994 amendment made staggering a nonissue.

"In 1994, it was no longer an angry, warlike atmosphere," Mr. Wells said. "I don't know why, but in 1983, the language was clear. And [in 1994], they took it out."

Miss Berry and Miss Wilson were the only two commissioners present. Miss Berry was joined by Elaine Jones, who heads the NAACP Legal Defense Fund.

Judge Kessler a Clinton appointee said she would likely call the lawyers together again next week for questioning and make an oral ruling from the bench.

Critics say Miss Berry has fought the Kirsanow appointment because she is afraid of losing her influence over the panel, which receives $9 million a year to hear civil rights complaints.

Miss Berry is a declared political independent who pushes liberal civil rights causes.

She has had a Democratic majority since becoming chairman in 1993.


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