Skip to comments.Bush Civil Rights Appointee Unanimously Wins Appeal
Posted on 05/10/2002 8:43:18 AM PDT by Michael.SF.
WASHINGTON The U.S. Court of Appeals has unanimously ruled that President Bush's nominee to a disputed seat on the U.S. Commission on Civil Rights is the legitimate holder of that seat.
At issue is whether Victoria Wilson, who was appointed by then-President Bill Clinton to complete the term of Judge A. Leon Higginbotham on Jan. 13, 2000, or Peter Kirsanow, who was appointed by President Bush to a new six-year term, was the legitimate holder of the position.
As CNSNews.com previously reported, a Justice Department attorney told the three-judge panel that Congress did not intend to eliminate staggered terms when it rewrote the law authorizing the commission in 1994.
"There is nothing in the legislative history to indicate that they attributed any significance to the rewriting, and there is affirmative evidence that they thought they weren't changing anything," said DOJ lawyer Greg Katsas.
The court agreed, reversing U.S. District Judge Gladys Kessler's Feb. 4 opinion in favor of Wilson.
"Congress did not disrupt the staggering of terms of Commission members created in the 1983 Act," Judge David B. Sentelle wrote in the court's unanimous opinion. "Because we agree with appellants that Wilson's term had expired, we reverse the District Court."
"We hold that Wilson was appointed by President Clinton only to fill the unexpired term of Judge Higginbotham, as her commission indicates, and her service as a Commissioner terminated on November 29, 2001," Sentelle continued in the opinion.
"As a result, Kirsanow, having been validly appointed to a vacant seat on the Commission on December 6, 2001, for a term expiring November 29, 2007, and having taken the oath of office, is a member of the United States Commission on Civil Rights," he added.
Kirsanow tells CNSNews.com that he is "pleased, but not surprised."
"Obviously, I'm very happy," he said, "and I'm grateful for the president's confidence and the administration's unqualified support."
Kirsanow says the ruling does not surprise him, in part, because of the "outstanding job" done by Justice Department attorneys presenting the case.
"My attorneys and the Justice Department have been saying from the outset that the law is pretty clear in this matter and that it supports our position," he explained.
Mary Frances Berry in Trouble
Sentelle also noted in the opinion that the actions taken by commission Chairwoman Mary Frances Berry and Vice Chairman Cruz Reynoso to intervene on behalf of Wilson may have been contrary to law, as was claimed by the Justice Department.
"The United States [government] objected that neither the Commission nor its officers in their official capacity have the right to appear in litigation without the permission of the Attorney General, which they had not obtained," he observed.
Sentelle referenced 28 United States Code 516, which states, "Except as otherwise authorized by law, the conduct of litigation in which the United States, an agency, or officer thereof is a party, or is interested, and securing evidence therefore, is reserved to officers of the Department of Justice, under the direction of the Attorney General."
Kessler permitted the intervention in the original case. However, the appeals court did not rule on the issue, Sentelle wrote, because the government did not raise it as part of the appeal.
In fact, the Justice Department acknowledged that the involvement of Berry and Reynoso had, "no practical effect upon the issues presented, since Wilson herself is entitled to defend against the government's complaint."
Calls to the USCCR's office requesting comment on the decision had not been returned prior to the publication of this story.
That's where it gets interesting again. Bush's pick would have made the panel 4-4 liberal-conservative (though not 4-4 dem-rep since two or three of the libs are "independants"). In the interim, however, one of the repulicans' terms has ended and the replacement is to be selected by the congress. "Tradition" says that this pick belongs to the Republicans who would probably re-appoint the same guy, but the power sits with Daschle who could ignore "longstanding tradition" and pick whoever he wants (including the woman who was just booted).
That means her term is up in 2005. Since there is no chance in hell that Bush will reappoint her, the RATs will probably reappoint her to one of their slots.
The Commissioners serve 6-year terms. No Senate confirmation is required. The President may remove a member of the Commission only for neglect of duty or malfeasance in office.
Her term ends Dec.2004. If Bush losses his re-election, she plans to use this lie to be reappointed by his successor.
Miss Berry's incompetent reign is technically scheduled to terminate Dec. 5, 2004. That means President Bush will have the power to replace her before the end of her first term. Miss Berry, imitating the old Soviet politburo machinations that so obviously intrigue her, has attempted to finagle an expiration date of Jan. 21, 2005, which would put her out of Mr. Bush's reach in the event a Democrat succeeds him in 2005. One of the best things Mr. Bush could do to improve long-term race relations is to let the race-baiting Miss Berry know that her attempted subterfuge will not stand. The sooner he lets her know to have her bags packed by Dec. 5, 2004, the sooner she can begin her inevitable cries of racism.