- The Washington Times - Tuesday, February 5, 2002

A federal judge yesterday blocked President Bush's appointment of a conservative Cleveland labor lawyer to the U.S. Commission on Civil Rights.
U.S. District Court Judge Gladys Kessler ruled that members of the commission serve six-year terms, which means Mr. Bush had no legitimate vacancy to fill when he appointed Peter N. Kirsanow last December to the seat held by Clinton administration appointee Victoria Wilson.
"The language [in a statute governing commission appointments] is clear," the judge said at a hearing. "All commission members serve six-year terms, regardless of whether or not their predecessors were able to fill out their terms."
Commission Chairman Mary Frances Berry, who from the beginning has refused to recognize Mr. Kirsanow as a member of the panel, was pleased with the ruling by Judge Kessler, a former labor lawyer who was appointed to the bench in July 1994 by President Clinton.
"The court has upheld the independence of the commission," Miss Berry said outside the E. Barrett Prettyman Courthouse after the ruling. "The independence is the most important thing we were fighting for in this case. If they can tell us what to do on one thing, they can tell us what to do on something else. This ruling shows us that no Justice Department, no White House, can tell us what to do."
An ally of Miss Berry, Miss Wilson was appointed to the seat in January 2000 by Mr. Clinton to succeed Judge A. Leon Higginbotham Jr., who died in office in 1998. Miss Wilson maintained that her appointment was for a full six years, which would mean that her term would expire January 2006.
The Bush administration filed a lawsuit in December arguing that Miss Wilson's term ended in November, when Mr. Higginbotham's tenure would have expired.
Attorneys with the Justice Department, who argued the case on behalf of the White House, declined to comment on the judge's ruling.
Mr. Kirsanow's attorney, Rob Kelner, said he is confident that the Justice Department will appeal the judge's decision to the federal Court of Appeals. Mr. Kelner said his client's case could go before the U.S. Supreme Court if the Court of Appeals denies an appeal.
"We believe the ruling was, with respect to the judge, made in error," Mr. Kelner said. "We feel that the judge ignored legislative history and focused on one part of the statute and ignored other parts of it."
Arguments in the case centered on the interpretation of a statute governing commission appointments. The law was passed by Congress in 1983 explicitly requiring staggered terms and amended in 1994 with less-specific language.
The 1983 statute included a provision stating that each commissioner would serve a six-year term, except "any member appointed to fill a vacancy shall serve for the remainder of the term for which his predecessor was appointed."
That specific provision, or exception, was deleted in the 1994 statute, which the judge referred to when making her ruling. The statute now only includes language that says "the term of office of each member of the commission shall be six years."
"This provision is perfectly clear," Judge Kessler said. "It contains no exceptions."
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 stacking the panel with his own appointees.
Critics have said Miss Berry fought Mr. Kirsanow's appointment because she is afraid of losing her influence over the panel, which receives $9 million a year to hear civil rights complaints. The appointment of Mr. Kirsanow a black conservative would have shifted the commission's makeup from a 5-3 split that generally favors Miss Berry to a 4-4 split.
The panel has had a Democratic majority since Miss Berry became chairman in 1993.
Judge Kessler has heard several high-profile cases in the past.
One of those cases included her ruling that blocked the Federal Election Commission from releasing thousands of documents, obtained by the Associated Press, showing how the Democratic Party allowed labor unions to approve or veto campaign activities in return for donations. In that case, Judge Kessler agreed with the Democrats that the thousands of pages which contain confidential information, strategies and employee names were too sensitive to be released.


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