Posted on 12/11/2001 5:28:02 AM PST by Stand Watch Listen
Mary Frances Berry, the chairman of the U.S. Commission on Civil Rights, is a bully. Her most recent escapade -- last Friday -- involved her refusal to seat Peter Kirsanow, the man appointed by President Bush to a commission seat that became vacant on Nov. 29. Berry told White House counsel Al Gonzales he'd better send federal marshals if he wanted Kirsanow to take his lawful place on the commission.
But her outrageous behavior in this incident is nothing new. I've watched her in action for years, even before President Reagan appointed me staff director, the chief executive officer of the commission, in 1983 when she served as vice chairman. She once bullied a member of the commission staff so badly -- in words not fit to print in a family newspaper -- I had to threaten to have her removed from the building.
"Your use of intimidating curses and vile language as well as your overall abuse of a subordinate go far beyond permissible behavior," I informed her in a memo. "If you repeat such abusive behavior in the future, I will ask you to remove yourself from the premises and will seek to have you removed if you do not comply."
"Call It Uncivil" The New York Times dubbed the conflict, one of many in our stormy tenure together.
Berry was first appointed to the commission in 1980, largely to get rid of her at the then Department of Health, Education and Welfare, where she served as an assistant secretary. Berry had embarrassed the Carter administration by returning from a trip to China extolling the Maoist education system there, including its use of ethnic quotas in higher education. So President Carter passed over Berry when he created the new Department of Education, shipping her off to the Civil Rights Commission instead. She's been getting even with presidents ever since.
In 1983, President Reagan fired Berry and two other commissioners. At the time, commissioners were appointed to serve "at the pleasure of the president," like all presidential appointees of executive branch departments and agencies. But Berry refused to go -- until I changed the locks on the door.
She then went to court to fight her removal, and got a favorable ruling from a liberal District Court judge. But in the meantime, the Congress re-wrote the law, authorizing the president to appoint four commissioners for six-year terms and Congressional leaders to appoint an additional four members with the same conditions, thus mooting her court case, which had moved to the U.S. Court of Appeals by then.
I was with President Reagan in the Oval Office when he signed the new law, but he did so with strong reservations. The Justice Department had issued a legal opinion questioning whether the new commission structure was Constitutional. Article II, section two clearly gives the president exclusive right, with the advice and consent of the Senate, to appoint ambassadors, judges and "all other officers of the United States, whose appointments are not herein otherwise provided for."
The Constitution limits Congress' role to vest the appointment of "inferior officers" by law in the president alone, the courts or the heads of departments -- but not to assign such powers to itself.
Ignoring such Constitutional niceties, the Democrats in Congress proceeded to appoint four commissioners, including Berry, for six-year terms. And she's been reappointed every time her commission expired since then.
President Clinton appointed her chairman when he took office, but even he had reservations about Berry. When he decided to initiate what he called a "national dialogue on race," he kept Berry out of the picture, appointing a whole new commission to oversee the enterprise.
President Clinton also appointed Victoria Wilson on Jan. 13, 2000, to fill the unexpired term of a commissioner who had died. The presidential appointment Wilson received clearly states her term expired Nov. 29, 2001. It's Wilson's place Kirsanow should have taken last week after President Bush appointed him and he was sworn in by a federal judge. But Berry believes she -- not President Bush nor President Clinton -- determines when commissioners' terms expire.
The White House says they'll take Berry to court to force her to seat Kirsanow. The president ought to fire Berry at the same time. As long as this issue is going to wind up in the courts, why not settle the question left unanswered in 1983? Since when did the Constitution permit Congress to limit the president's right to appoint and remove officers of executive branch agencies anyway?
Did Reagan and/or Geo. H.W. Bush (re-)appoint Berry, or did Congress? We're told Clinton appointed her chairman even though he had "reservations" about her. If so, why chairman?! Sure, I can imagine Clinton playing politics and the race card even though he might have "reservations" about someone (if HE has reservations, that someone must be a real gem!). But, chairman?! I'm still left wondering who, besides Clinton, was responsible for her nearly 20-year reign on the commission.
NOT if they go by the Constitution, sir. It spells out this appointment business pretty well. They may have to wade through some meaningless B.S. that the liberals have strewn in the path to justice, but they win at the end of the day.
So, the obvious next step in this mystery: Republicans had total control of Congress for six years (1995-2001). By definition, she was reappointed during that time. WHAT'S UP WITH THAT?! Did Clinton's appointing her Chairman do something to change her term, or did the Republican Congress cave in to special interests?
The consitution allows congress to create laws. The law in this case is on Berry's side. You and others can grab your pitch forks but I am warning you that she has the law on her side and you (and Bush) are going to look like racist bigots when this is over.
My only question is who is setting up Bush on this or does Bush have a bigger plan.
Yes, but those laws have to be in accordance with the Constitution. The constitutionality of the provision preventing the President from firing the members of an executive branch commission has not been tested in court. Just because a law is passed and signed does not mean it is constitutional...
If Bush is willing to fight that, I think he could win on constitutional grounds. It is a separation of powers issue, and the courts tend to rule pretty strictly on those issues.
Disenfranchised (Republican) Blacks in Florida
Source: INSIGHT magazine; Published: Decmeber 7, 2001
Author: Chris Jolma
Ditto!
What day next week is all of this coming to a close? (some kind of meeting/final discussion/final decision is pending, right?)
I tracked down a pre-1994 version of the relevant statute, and it did indeed contain a provision regarding completion of partial terms that is absent from the current version. Normally, the removal of that provision would suggest strongly that Berry is right.
But, there were a lot of other changes to the old version as well because it was horribly confusing and badly written. The new version is much, much simpler. So it might be argued that simplification was the real goal, and that there wasn't a specific intent to remove the staggering element or the replacement element.
I think the key issue may be the composition of other independent commissions, and whether the authorizing statutes have specific provisions regarding filling vacancies. If, for example, "replacement" commissioners serve only for the original term even thought that is not stated in the governing statute, Bush has a strong argument. Anything else, and Bush will probably lose.
Really ?? How so ?
In any case setting a precedent that the pres. can remove without cause woukld swing both ways.
I would rather they raise this as an issue of having independent investigatory committees apart from the DOJ. We seem to be of a common mind that the independent council laws were more trouble than they are worth we should easily be able to paint this with the same brush Ken Star was. To me that would be a far better strategic attack than the one they are currently on.
The irony in this will soon be seen by the liberals when they discover that this argument is over the meaning of SHALL. In Florida us GOPers took the posistion that it meant MUST, while the libs took a more exspansive view point (ie all people have thier votes counted). Now we are taking the exact opposite (hypocritical if you ask me) that SHALL doesn't exactly mean MUST, it actually needs to be taken in full context.
1) The original enabling legislation specifically called for replacement appointments to fulfill the unexpired term. The intent of this is clear that the Commission is to be contiguous, and not turned over with a change of administration. The amending legislation did nothing to change this, and is silent on how unexpired terms are filled.
2) All previous unexpired terms have been filled by temporary appointments to the end of the term.
3) This particular appointment was specifically made to the end of the unexpired term and had a specific termination date.
It seems that Ms. Berry's case is that President Clinton had no authority to appoint a commissioner to anything less than a six year term. But this assertion flies in the face of the original legislation and all precedence since then. Furthermore, this position invites the political stacking of the Commission by having mass resignation of all sympathetic members at the end of an Administration, so they can be re-appointed to six-year terms, which would deny the subsequent administration any right to appoint these seats.
Anyway you stack it up, this case seems like a loser for Ms. Berry in any court except for the court of public opinion. IMHO, it's a loser there, too.
But I'm not a lawyer. Can anybody explain how this woman has a case?
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