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?
It appears that will have to be done again to get the vile one to leave. How can she continue to get away with this?
No suprise the democrats chose to ignore the constitution and rewrite the rules for appointment.
I don't see a problem here. If this gets to a non-partisan judge (i.e. non-libby) Berry's brief is toast.
I posted #27. I don't understand what is hard to understand. Article II Section 2 of the Constitution specifies that power of appointments is with the President with advice and consent of the Senate. Then this same section allows the Congress to by Law vest appointment power for inferior offices to THREE (and only three) specific alternatives as it sees fit:
(1) The President alone, (this would waive the requirement for Senate confirmation)
(2) The courts of law, (court appointed commissions)
(3) The Heads of Departments (e.g. Secretary of Defense, Secretary of State, etc.).
There is not a provision for the Congress to authorize itself to appoint members of these commissions. Up until the point the Berry used the courts to intervene, Presidents could appoint and fire whomever they wanted to commissions like this (appointments subject to senate confirmation of course), and the fact that Berry injected the process into the courts by suing when Reagan fired her demonstrates how much she has politicized the commission that was supposed to be an independent rather than partisan political commission in the first place.
But the problem for a conservative judge is most won't want to interpret what the law says if it is clear. In this case the current law is clear. It says "shall be 6 years"
Spelling it out may be pro-forma but I haven't found one commission yet except this one that isn't spelled out. Further it was there before and was deliberately deleted by congress.
Maybe its because I tend to be conservative. My tax clients can lose money if I am wrong.
No, he was appointed by a court panel (one of the three constitutionally acceptable methods) and NOT by congress.
Again, I posted #27 explaining why a law passed by congress granting itself a power specifically restricted by the constitution to the President, the courts of Law, or the Heads of Departments and not to the congress, is unconstitutional on its face. Perhaps you are talking about post #33 where a poster stated that the SC has found indendent commissions to be constitutional. However, the constitutionality of the commissions themselves is not at issue here. At issue is the newly created power of the Congress to appoint the commissioners. While independent commissions may be constitutional, the only constitutional means of appointing the commissioners would be (1) the President with the consent of the Senate; (2) vested by law to the President alone; (3) vested by law to the Courts; or (4) vested by law to Heads of Departments. A law vesting to the Congress the power to appoint commissioners violates the limits of powers defined in Article II, Section 2.
If this is too difficult to understand, read Article II, Section 2 of the Constitution. That's what I did.
All of this may be a moot point.
Another Commissioner's term expired yesterday. I don't recall his name but he is a Republican. The Senate is next in turn to appoint a replacement with the Republicans being next in line to recommend an nominee to the Senate Majority leader. This alternating recommendation process is traditionally a courtesy. The Senate Majority leader (currently Tom Daschle) does not have to take the recommendation and it seems likely that the Repubs, this time, will give in to this in concession for a larger payback next time around. So, even if Victoria Wilson is unseated, the balance on the Commission will go back to 5 to 3 if Dashole is allowed to appoint a Democrat to the post.
We'll just have to wait another week or so to find out. Go here for more details
Then who is going to raise the issue ?
keep reading.
I did. I didn't see anywhere that you made the case for the law being on her side. Did I miss it?
I can only assume Berry (aka Arnold from Differant Strokes) was appointed by Clinton and democRATS when their turns came up. Ain't bi-partianship grand?
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