Posted on 12/07/2001 5:05:27 PM PST by syriacus
Commentary: Time to replace Berry
By PETER ROFF, UPI National Political Analyst
WASHINGTON, Dec. 6 (UPI) -- Even in America, demagogues can, on occasion, seize the reins of power. Once in their hands, it is often difficult to get back.Well aware of the European experience in such matters, where heredity and pedigree mattered more than ability, the Founding Fathers crafted a system that granted power to legislators and administrators on a temporary basis, forcing them to acknowledge that their behavior while in office was subject to review by America's sovereign political power, the people.
Mary Frances Berry, the chairman of the U.S. Commission on Civil Rights, is making a mockery of that principle.
Currently, Berry is trying to rewrite through assertion the rules governing appointments to the commission. In this, she is effectively denying the American people their right, through action by the president of the United States, to change the composition of the commission.
When the Clinton administration made Victoria Wilson a member of the commission, they did so with the understanding that her appointment was for the duration of the unexpired term of Commissioner Leon Higginbotham, a senior-status federal judge who had died.
That term ended on Nov. 29.
President Bush appointed Cleveland attorney Peter Kirsanow to a full six-year term, filling the vacancy. As U.S. Civil Rights Commissioners do not need Senate approval, the president's decision is final.
But don't tell that to Berry. She refused to swear Kirsanow in, telling White House Counsel Al Gonzales that the administration would need to send federal marshals to Friday's USCCR meeting along with the new commissioner to get him a seat at the table. And she made good on her threat.
Kirsanow was sworn in Thursday night by a federal judge in Gonzales' office and watched from the audience on Friday morning as attempts by the three commissioners to have him seated were repeatedly voted down 5-3,with Wilson casting votes against him.
Commissoner Kirsanow, according to reports, attempted to vote for the first 10 minutes of the session but was ignored by Berry and eventually sat silent as his allies continued the fight to have him seated.
Berry wants to keep Kirsanow, who would be the second Bush administration to the USCCR, off the commission to preserve her majority. If he is seated, the commission would shortly have an ideological deadlock of 4-4, effectively reining in Berry.
The fight over Kirsanow is about raw political power, plain and simple.
In support of Berry's position, the USCCR staff director sketched out a position that a commissioner's term is six-years long and that Wilson, even though the Clinton administration specifically indicated she had been chosen to fill out Higginbotham's unexpired term, is entitled to sit on the commission for a full six years.
If this interpretation of the rules, which Berry endorses, is correct, an outgoing president could, on his last day in office, appoint the one-half of the entire commission to a brand new six-year terms, provided the current presidential appointees all resigned before he did it.
This gambit was first brought to light, according to a well-placed source on Capitol Hill, in a letter to House Speaker Denny Hastert, R-Ill., applying the same interpretation to Commissioner Abigail Thernstrom, a Republican congressional appointee who has repeatedly clashed with Berry.
It is not beyond the pale to suggest that Berry or her allies within the commission believed they could get congressional approval of a surreptitious policy change -- that all terms run for six years from the date of appointment regardless of the nature of the vacancy -- by exploiting GOP desires to keep Thernstrom on the commission.
By standard Washington practice, those appointed to fill out the terms of others do not benefit from an automatic reset of the clock.
In the U.S. Senate, an appointed replacement serves out the balance of an unexpired term at the very most.
More commonly, appointed senators must stand for election at the next general election in order to win the right, by voter affirmation, to serve out the balance of the existing term. They do not get a fresh six-year term unless the next general election comes at the apporpriate point in the cycle.
If this is the case for a member of the U.S. Senate, why it is unreasonable to assume that the same principle governs appointments to the USCCR or any other independent agency?
Kirsanow, who has worked with the conservative Center for New Black Leadership, is a particular anathema to Berry. He represents a real challenge to the Soviet-style orthodoxy of the U.S. civil rights establishment; something Berry no doubt finds discomforting.
Since she was named to the commission by President Carter, she has been a focal point for controversy. Her criticisms, especially of conservative Republicans, are often over the top and she is not known for her tact.
When Vermont Sen. James Jeffords became an independent, handing control of the U.S. Senate to the Democrats, she celebrated the transfer of power by telling a convention of political activists that she was just sitting around waiting for (Republican U.S.) Sen. Strom Thurmond to die when the good news came.
Because of America's recent history on racial matters, she is largely insulated from criticism. Anyone who dares tangle with her must be willing to face a blistering counter-attack, one in which charges of "racist" and "racism" will be tossed around freely, if not by her then by her supporters.
This has prevented many who might otherwise publicly concede a legitimate case for her removal exists and has existed for some time from speaking up. Other executive branch officials and independent agency heads have been removed over offenses far less serious, from a Constitutional perspective, then what Berry has done -- including two Republican cabinet secretaries, forced to resign after telling racially insensitive jokes in public forums.
In the name of civil rights, she has tossed aside input from commissioners who disagree with her view of how the world works.
Those commissioners complain that Berry and the commission staff have denied them access to records, kept them in the dark about meetings and, in other ways, tried to create for them a hostile work environment.
Now, she has once again step over the line of acceptable conduct for the head of an independent agency of the United States government who serves at the pleasure of the president.
The statute governing the commission specifies that members serve at the pleasure of the president, who may fire them for neglect of duties or for malfeasance. Berry's refusal to accept Kirsanow's appointment certainly fits under the heading of neglect, so the president would be justified in removing her. But more importantly she is flouting the democratic underpinnings of the American system.
She has set herself up as an autocrat, responsible to no one but herself. That is antithetical to the American system of governance.
The president should fire her.
She does sound like Napolean...She believes in equality, as long as she gets to administer the equality.
Yes, he should.
L
No, the president should disband the U.S. Commission on Civil Rights.
OH, a hillary clinton/olympia snowe appointtee.
Ah, yes! Lets hear it for heredity and pedigree.
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Remember the guy on Hannity & Colmes that made the PETA chick look REALLY stupid? Well that's Roff!
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