- The Washington Times - Friday, May 10, 2002

A federal appellate court yesterday ruled unanimously that President Bush's appointee to the U.S. Commission on Civil Rights is the rightful commissioner and that a Clinton appointee's term ended in November.
The U.S. Court of Appeals for the D.C. Circuit ruled that Peter Kirsanow, not Victoria Wilson, is the rightful sitting commissioner on the eight-member panel. The ruling reverses a lower court decision and clarifies a statute concerning appointments to the commission.
The court's opinion declared that Mr. Kirsanow "is a member of the U.S. Commission on Civil Rights and has been since Dec. 6, 2001," when he was appointed.
Commission Chairwoman Mary Frances Berry said, "We are studying the possibility of appealing the court's ruling" in a statement yesterday.
Mr. Kirsanow, a Cleveland labor lawyer and former chairman of the board of directors of the conservative Center for New Black Leadership, said he would fill his court-ordered seat at the commission's monthly meeting May 17.
"I plan to be there and perform my duties," said Mr. Kirsanow, who was co-plaintiff with the Justice Department in the lawsuit. "I have kept up to speed on the issues and am prepared for the next hearing."
The dispute centered on which federal statute governs the commission.
When Congress re-established the commission in 1983, it limited the panelists' terms to six years and staggered them so that no one party could stack the commission. The statute also provided that "any member appointed to fill a vacancy shall serve for the remainder of the term for which his predecessor was appointed." When the commission was reauthorized in 1994, that part of the statute was left out.
Miss Wilson was appointed by President Clinton on Jan. 13, 2000, to fill the unexpired, six-year term of Judge A. Leon Higginbotham, which ended Nov. 29, 2001. She contended that because the 1994 law has no provision for recess appointments or for one person serving out another's term, all appointments, including hers, are for six years.
The court, however, rejected that claim and accepted the Justice Department argument that the 1983 statute is applicable because the 1994 law "did not disrupt [the term mandates] created in the 1983 Act."
Mr. Kirsanow has attended each meeting since his appointment five in all and has been sitting with the audience. He has been prevented from sitting on the commission by Miss Berry, who refused to recognize him.
White House spokeswoman Anne Womack said yesterday that "the court has made it very clear that Peter Kirsanow is a rightful member of the commission, and we fully expect that he will be recognized as such."
Miss Berry sided with Miss Wilson in the dispute and entered into the lawsuit as an "intervenor," or affected third party, along with the commission's vice chairman, Cruz Reynoso.
When she entered the legal fray, she promised to "abide by judicial instructions."
Mr. Reynoso called the decision a surprise and a disappointment.
"I know a lot about statute interpretation, and I would say this one is incontrovertible," said Mr. Reynoso, a former associate justice of the California Supreme Court.
Miss Wilson and the commission, as represented by Miss Berry and Mr. Reynoso, have 30 days to appeal the ruling made by a three-judge panel of the D.C. appellate court. They could ask for a hearing before the entire court called an "en banc" hearing in which all 11 judges of the court rehear arguments.
The case also could be sent for consideration to the U.S. Supreme Court within 90 days.
The ruling brings closer the possibility of partisan parity on the commission, which was established in 1957 to enforce voting rights.
Its eight members, four appointed by the president and four by Congress, are supposed to be evenly split ideologically, an ideal that has not been met for several years.
With yesterday's ruling, the panel has four liberal-leaning members Miss Berry, Mr. Reynoso, Christopher Edley Jr. and Elsie Meeks and three Republicans Mr. Kirsanow, Abigail Thernstrom and Jennifer Braceras.
The term of Russell Redenbaugh, a Republican, expired in December and has not yet been filled. Long-standing tradition and courtesy give Republicans their choice in this appointment, although the appointment will be made by Senate Majority Leader Tom Daschle, South Dakota Democrat.
The selection, though, is supposed to be that of Republican Sen. Trent Lott, who, through a spokesman, said that he has "had a conversation with the commissioners about naming an individual" to the panel.
Mr. Redenbaugh has said he would like to serve another term but has heard nothing.
"I'm extremely interested and concerned about that appointment," Mrs. Thernstrom said yesterday. "I don't know why that appointment has remained empty."
A source close to the commission said yesterday that "it would be extraordinary, although not impossible, that Daschle would throw courtesy out the window. There are people who may now ask him for a favor, to disregard that courtesy."
Yesterday's decision also calls into question the validity of the advisory reports released by the commission in the past five months and the public money spent on the expenses of Miss Wilson during the disputed period.
"I would imagine that Miss Wilson owes the government some money," said Rob Kelner, a Washington lawyer who represents Mr. Kirsanow. His client, Mr. Kelner said, was entitled to reimbursement for his travels to attend meetings.
Leon Friedman, a lawyer for Miss Wilson, chortled at the notion of his client's debt to the government.
"So this is what it's come to?" Mr. Friedman asked.
The commission has released several reports since December, including one that accuses Congress of "neglect" in funding the myriad federal civil rights organizations.


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