Robert B. Bluey, Human Events Online, Nov. 16
Mary Frances Berry, the combative chairwoman of the U.S. Commission on Civil Rights, won’t step down when her term expires in December, vowing instead to stay on the job six weeks longer at the government’s expense.
After the commission’s Friday meeting, the liberal Berry told HUMAN EVENTS she would stay until midnight Jan. 21, 2005, a date the commission’s Democrat-appointed staff director has decided is the end of her term.
“I’m not doing anything except serving out my term,” Berry said when asked about the dispute. “There’s no question. You heard what the staff director said. I’m abiding by what they say.”
Former President Bill Clinton re-appointed Berry to succeed former commissioner Connie Homer, whose term expired Dec. 5, 1998. But because Clinton delayed appointing Berry until Jan. 26, 1999, she has maintained the December 5 date is irrelevant.
But a federal appeals court decision from 2002 — pertaining to the very issue of commissioners’ terms — contradicts Berry. In that case, a three-judge panel of U.S. Court of Appeals ruled that commissioners’ terms begin immediately after a vacancy occurs regardless of how long it takes the President or Congress or make an appointment.
The case centered on former commissioner Victoria Wilson’s refusal to relinquish her seat to Peter N. Kirsanow, a Cleveland labor lawyer who President Bush appointed in December 2001. Wilson argued that she deserved a full six-year term rather than the abbreviated one that she was appointed to by Clinton to fill a vacancy.
Berry sided with Wilson, telling the President he would have to send U.S. marshals to the commission meeting if Kirsanow wanted a seat on the panel. Wilson eventually appealed to the Supreme Court, which declined to hear the case, handing Bush a victory.
The commission’s latest episode has been brewing for months. At the July meeting, Republican commissioners broached the subject with Berry, who defiantly told them she would abide by the commission’s records, kept by her ally Les Jin, the staff director.
Jin dismissed a question from Kirsanow at Friday’s meeting about Berry’s term. (The term of Vice Chairman Cruz Reynoso, a Democrat, is also in dispute.) After the meeting, Jin briefly addressed the matter with HUMAN EVENTS.
“Our records show that Chairperson Berry and Vice Chair Reynoso’s term would expire at midnight on Jan. 21,” he said.
The commission’s Republicans don’t plan to press the issue because it’s ultimately in the hands of the White House or Justice Department to take action.
Kirsanow, however, warned that Berry would be causing anarchy if she chose to stay past Dec. 5. He said it would be unimaginable for any other presidential appointee to simply ignore the rule of law and get away with it.
“People may say, ‘What’s the big deal? So she’s around for two more months.’ Well, there are many big deals,” Kirsanow said. “This is the presidential appointment prerogative. . . This goes right to a representative democracy because the people have said the President gets this appointment authority. And if someone takes it upon themselves to frustrate that prerogative, they are frustrating the will of the people.”
Not to mention, Kirsanow said, that Berry might attempt to collect her per diem pay from the commission between Dec. 5 and Jan. 21. As chairwoman, Berry is allowed to bill the commission for up to 125 days per year, meaning she could be collecting a quasi-government salary.
As for the commission records Jin referred to at Friday’s meeting, Kirsanow said any federal court decision — in particular Marbury v. Madison or Kirsanow v. Wilson — would trump government personnel documents.