A Sour Berry (re: U.S. Commission on Civil Rights)

CNSNews.com ^ | December 11, 2001 | Linda Chavez

[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?

[Alamo-Girl]

Yes it is rather disturbing. Thanks for the heads up!!!

[VRWC_minion]

I assumed the specialized formula referred to the allocation of appointees and parties, not the time frame.

If I understand the timing it appears the house first introduced a bill the specified stagered terms on 8/19/94 and then reported a different bill on 10/3/94 without the staggered language, then it adopted the senate version of the bill which never changed much and always had any mention of vacancy appointment or stagered terms omitted.

Question, did the house change the bill on 10/3/94 to more closely resemble Sen bill ? Was their discussion about it ? Is this more ammo to show the change wasn't inadvertant ?

[VRWC_minion]

The thing that confuses this is that this committee is subject to reauthorization constantly, so the issue of vacancy terms might not be all that important at the time it is being passed.

[VRWC_minion]

the Dems are trying an end-around

Don't worry, Trent Lott will stand his ground.

[VRWC_minion]

New battle brewing on civil rights panel
By Steve Miller
THE WASHINGTON TIMES

     Another conflict is taking shape at the U.S. Commission on Civil Rights, where a new vacancy on the eight-member panel will be filled by congressional Democrats.

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     Congressional sources speaking on the condition of anonymity say that although long-standing tradition and courtesy would give Republicans their choice in the appointment, the bitter fight in Congress over appointments will affect the naming of the new commissioner.
     The Democrat-led commission, which last week defied a White House order to seat a new appointee, is seen by some Republicans as fighting to save its 5-3 majority. That majority has been accused by Republicans of using investigative reports for partisan ends and for the iron hand of Chairman Mary Frances Berry, a declared political independent who has contributed $19,000 to Democratic causes since 1992.
     The newest conflict at the commission involves the reappointment of Republican appointee Russell Redenbaugh, whose second six-year term on the commission ends today.
     His future is the call of Senate Majority Leader Tom Daschle, South Dakota Democrat. Although custom holds that it is the Republicans' turn to name a commissioner, sources both on Capitol Hill and surrounding the commission say Mr. Daschle is being pressured not to heed that courtesy and instead help keep a Democratic majority on the panel.
     Mr. Redenbaugh met with Senate Minority Leader Trent Lott's office in late September, pushing for reappointment. But the Mississippi Republican hasn't made a move on the matter, and some Republicans around the commission are afraid that inside political machinations are already moving to get rid of Mr. Redenbaugh in favor of a Democrat.
     "I understand that some contend that it is Daschle's to make, which is contrary to practice," Mr. Redenbaugh said. "And I think Senator Lott will be very irritated when he hears [this]."
     On the commission, four seats are filled by presidential nomination and four by congressional appointment. For the latter four picks, the parties customarily alternate choices, although the final say is formally in the hands of the Senate majority leader.
     Neither Mr. Daschle's office nor Mr. Lott's returned calls for comment.
     The uncertainly over Mr. Redenbaugh's seat comes amid a contentious battle over whether commissioner Victoria Wilson's term is valid until 2006. She was appointed in 2000 by President Clinton to fill the term of a departed commissioner. Counsel for both the Justice Department and the White House say that such members serve only to fill out the original panelist's term.
     Miss Berry and the commission's legal staff say the statute says only that each appointee serves six years. If the final court determination lets Miss Wilson stay, there would remain a Democrat-leaning majority on the commission.
     But a new Democratic appointment would make the fate of Miss Wilson's seat moot.
     Mr. Daschle made the last appointment of Democrat Elsie Meeks in 1999, when he was Senate minority leader.
     "Realistically, [Democrats] can do whatever they want to do here," said Tripp Baird, director of Senate relations at the Heritage Foundation and a former staffer in Mr. Lott's office. "And since Lott's no longer the majority leader, who gets to technically make the appointment is a question of procedural precedent."
     A former commission employee said: "It means that the whole Victoria Wilson thing won't matter because if they wave a white flag on the Senate side, the whole thing is over."
     One congressional source said there has been talk that Republicans are willing to sacrifice the commission appointment for something they perceive as more substantial.
     The commission was created in 1957 with the intent of being a bipartisan, objective body. It now has a 75-person staff and a $9 million annual budget. Its agenda has been questioned in the last several years, however, because of the content and timing of several of its reports.
     In 2000, the commission released a report criticizing efforts to end race-based college admissions in Florida and Texas. The report came during the presidential campaign of George W. Bush, who was governor of Texas at the time.
     The commission also released a report highly critical of the New York Police Department last spring, just as a U.S. Senate battle between Mayor Rudolph W. Giuliani and Hillary Rodham Clinton looked imminent.
     An investigation of last year's presidential election in Florida asserted that President Bush's victory there was attributable to a "pattern and practice of injustice" and discrimination against black voters.
     The political feuding at the commission came to a head last week, when Miss Berry refused to acknowledge White House appointee Peter Kirsanow as a commissioner, referring to him as a "member of the audience."
     Commission member Cruz Reynoso, a Democratic appointment, reaffirmed Sunday that in the past, the party of the appointer has alternated over the years.
     "The law doesn't specify," Mr. Reynoso said. "But I believe that there is an informal agreement that each party will appoint one. I would assume that the Senate leadership would appoint whoever the Republican leadership designates."
     Mr. Reynoso said that both his and Miss Berry's appointments were made by President Clinton as Republicans took control of Congress because "they were afraid the Republican leadership was not guided by that informal understanding."
     A spokesman for Miss Berry said Sunday that the situation was "interesting" but that nothing has been decided from her end.

[ken5050]

When the GOP retakes the Senate next year, and it will, Lott has got to go.....but who?

[Alamo-Girl]

Here is the chronology and reference to the Congressional Record:

S.2372
Floor Actions
10/25/1994 Public Law 103-419 (11/29/94 CR D1259)
10/18/1994 Measure presented to President (11/30/94 CR S15227)
10/17/1994 Enrolled Measure signed in Senate (11/30/94 CR S15225)
10/17/1994 Enrolled Measure signed in House (11/29/94 CR H11435)
10/7/1994 House agreed to Senate amendment (CR H11295)
10/6/1994 Senate agreed to House amendment with an amendment (CR S14407)
10/3/1994 Measure passed House, amended, in lieu of H.R. 4999 (CR H10462
10/3/1994 Measure considered in House (CR H10462)
10/3/1994 Measure called up by unanimous consent in House (CR H10462)
9/30/1994 Measure passed Senate, amended (CR S13850)
9/30/1994 Measure considered in Senate (CR S13849-13850)
9/30/1994 Measure called up by unanimous consent in Senate (CR S13849)
9/28/1994 Reported to Senate from the Committee on the Judiciary (without written report) (CR S13580)
Congressional Record Page References
8/9/1994 Introductory remarks on Measure (CR S11045)
8/9/1994 Full text of Measure printed (CR S11045)
9/30/1994 Full text of Simon amendment 2607 printed (CR S13896)
10/3/1994 Full text of Measure as passed Senate printed (CR S13917)
10/6/1994 Full text of Measure as passed House printed (CRS14406-14407)
10/6/1994 Full text of Simon amendment 2629 printed (CR S14558)

H.R. 4999
Floor Actions
10/3/1994 Measure laid on table in House, S. 2372 passed in lieu (CR H10462)
10/3/1994 Measure passed House, amended (CR H10462)
10/3/1994 Measure considered in House (CR H10459-10462)
10/3/1994 Measure called up under motion to suspend rules and pass in House (CR H10459)
10/3/1994 Reported to House from the Committee on the Judiciary with amendment, H. Rept. 103-775 (CR H10536)
Congressional Record Page References
10/3/1994 Full text of Measure as passed House printed(CR H10459-10462)

I fully agree with your assessment that the renewal was the main issue, and the rewording was not. That's why I highlighted the "concise" remark in the house. Since the summary of 10/4/94 in the senate occured after the wording change - it appears that the intent was not to truncate the meaning of the term clause!

[Southack]

First, take note that Republicans have begun a coordinated OFFENSIVE attack against Berry. Most posters on FR complain (sometimes bitterly), that Republicans never go on the offensive. Take a gander at the article for this thread, and its author. That criticism can not apply to this situation.

Second, note that the Republicans win no matter which way the court rules on this issue. If Berry wins the battle over Wilson's 6 year term, then Republican members can all resign and be reappointed to new, full 6 year terms on President Bush's last day in office. If Berry loses the battle, then a new Republican gets to take a seat on the commission, instantly.

This leaves public opinion and politics. How will the two major political parties fair if this issue starts getting Condit-levels of press attention? Will Berry be a vote-getter or a vote-loser for Democrats as TV coverage shows her typical behavior and attitudes?

If President Bush remains firm but calm, while Berry curses, wails, and tries to cheat, how will this play out?

Well, there is another aspect. The law for this commission is clearly under question right now. Was there an ommission in the printing or passing of this law (in regards to terms)? Is the law Consitutional?

Frankly, it is the Democrats who have the most to lose from all of the above scenarios and questions (should they receive widespread publicity). The only two risks for Republicans are either cravenly caving to Berry or to appearing "unfair" to Berry or civil rights.

Should GWB continue to remain both fair and calm, however, then this issue becomes a rather significant liability for Democrats. How many Democrats want to be lambasted by their opponents campaign ads as having voted for and supported Berry? With so little media exposure, Democrats are currently afraid to NOT support her; however, should Berry receive widespread media attention, that may very well change.

[VRWC_minion]

The Ripping Friends are his heroes and he wants to be just like them.

Too much to hope for ?

[VRWC_minion]

I fully agree with your assessment that the renewal was the main issue, and the rewording was not. That's why I highlighted the "concise" remark in the house. Since the summary of 10/4/94 in the senate occured after the wording change - it appears that the intent was not to truncate the meaning of the term clause!

you are going to fast for me,

[Alamo-Girl]

So sorry about that! I was speaking to your post #43 The thing that confuses this is that this committee is subject to reauthorization constantly, so the issue of vacancy terms might not be all that important at the time it is being passed.

It seems to me that - at the time the summary of the senate bill was written and amended on 10/6/94 - the language had not been truncated to a simple "6 years." The senate agreed that day, the house the next and off it went to be signed.

The Congressional Record on the house side explained that the text of the code was being made to be more "concise" and gave an unrelated example.

The language of the term clause was not a focus of attention on either bill or amendments. All the actions, amendments, discussions I could find appear to focus on the reauthorization and functions of the commission.

So adding it up - it looks to me like both the house and the senate saw the term language to be a continuation of prior practice and weren't concerned with the more "concise" language.

This could cut both ways. I recall reading a very old USSC decision that basically said it didn't matter what congress intended, only what they actually did. However, many of the more contemporary USSC decisions reach back into the congressional records and committee hearings to determine intent.

Therefore, IMHO the courts will observe an absence of discussion on the issue as an intent not to disturb the prior meaning.

[VRWC_minion]

Therefore, IMHO the courts will observe an absence of discussion on the issue as an intent not to disturb the prior meaning.

I wish that is how they end up reading tax descions. They almost always go with text as written and the burden is on the an alternative view. Seeing that there is nothing in the record to show that there was an intent to keep the members staggered and further that this langauge was actually dropped by a previous bill doesn't provide support for that.

There is going to be a problem with judges on this too. We know how the liberal judges will rule but the conservative's will lean toward a strict construction. Shall=Must.

Contrary to your optimistic view, Bush isn't likely to win.

What bugs me is why is Bush taking so forcefull a posistion if the law isn't all that clear ? Has someone in DOJ set him up ? Or does he have a bigger plan that doesn't hinge on winning this issue?

[CA Conservative]

"...and the current staggering of terms shall continue..."

This is the phrase that will bite Ms. Berry in the butt... If her interpretation of the statute is accepted, the current staggering of the the terms will NOT continue. Every time a mid-term vacancy occurred, the staggering would change, until it would be possible for all commission members to be appointed in the same year... The only way for the current staggering of terms to continue is for the term to end as scheduled, regardless of who finishes the unexpired term.

And as you keep pointing out, "shall" means "must"...

[CA Conservative]

"Seeing that there is nothing in the record to show that there was an intent to keep the members staggered ...

Actually, this statement is disproved by one of your previous posts... (see my last post to you, #53).

[VRWC_minion]

You wrote:

"...and the current staggering of terms shall continue..."

This is the phrase that will bite Ms. Berry in the butt... If her interpretation of the statute is accepted, the current staggering of the the terms will NOT continue. Every time a mid-term vacancy occurred, the staggering would change, until it would be possible for all commission members to be appointed in the same year... The only way for the current staggering of terms to continue is for the term to end as scheduled, regardless of who finishes the unexpired term.

And as you keep pointing out, "shall" means "must"...

Go back and take it slower. This actually helps Berry's case. It means the omission of the words in the current legislation was deliberate.

What you are reading is a version of the House bill before it was passed in 1994 on 8/19/94. This staggered language was omitted later on 10/3/94.

[VRWCmember]

Please expand on this. I am not following.

The constitution states that the power to appoint "Officers of the United States" (which is what any of these commissioners on an executive branch commission would be) rests with the President with the consent of the Senate. The same article allows the Congress to vest by Law the appointment power (1) to the president alone (i.e. not subject to Senate consent), (2) to the courts of law, or (3) to the Heads of Departments. These are the three choices available. If the congress decides to pass a law vesting in itself the power to appoint the commissioners then the congress has unilaterally granted itself a power that is outside of its authority under the constitution. The constitution was specific in what it granted to the congress regarding vesting the authority to appoint these commissioners and the congress ignored the rules and passed a law granting itself a power it was not constitutionally authorized to grant. What part of this is too hard to follow?

[VRWC_minion]

Actually, this statement is disproved by one of your previous posts... (see my last post to you, #53).

Slow down, that version wasn't passed. It helps Berry to show the ommission of the staggered terms was itentional.

[Psycho_Bunny]

Are you kidding, or insane, or just have no clue how appointed positions work in the Federal Government?

[VRWC_minion]

See # 27

[VRWC_minion]

Are you kidding, or insane, or just have no clue how appointed positions work in the Federal Government?

If they work a certain way then there is no need for legislation. Why bother to write a law on how and when soemone is to be appointed ?

So far Alamo girl sees the problem plus an attorney who posted above.