[Congressional Record Volume 147, Number 168 (Thursday, December 6, 2001)]
[Senate]
[Pages S12530-S12531]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
CONCERN FOR THE INTEGRITY AND REPUTATION OF THE UNITED STATES CIVIL
RIGHTS COMMISSION
Mr. HATCH. Madam President, I rise today to address an unfortunate
situation that has come to my attention concerning the United States
Civil Rights Commission. One might even say that it is unbelievable.
There is no one in this body that has greater appreciation for the
work and history of the United States Civil Rights Commission than I
do, and for the need of having a body such as this that can review
issues that may arise in the area of civil rights without the taint of
partisanship or ideologies. It is comforting to know that there is such
a body that gathers disinterested public servants of unimpeachable
integrity with a passion for the great work of securing the freedoms
which belong to all citizens, without discrimination.
As you know, the Congress has taken a great interest in the
appointment of the Commission's eight members. In fact, four of the
eight are appointed by the Congress, two by the Senate and two by the
House. The President appoints the other four. In each case, whether
appointed by the President or by the Congress, the Commission must have
an equal number of Commissioners from each party.
It appears that there is a controversy brewing as to when the term of
a Commissioner expires. I believe that this controversy could do severe
harm to the reputation of the Civil Rights Commission and the trust
that is placed in it by the American people. I hope that this is a
matter that will have an immediate resolution.
Apparently, one of the presidential appointees of the previous
administration, Victoria Wilson, is refusing to accept the expiration
of her term. Ms.
[[Page S12531]]
Wilson claims that she was appointed for a six-year term, although it
appears that President Clinton expressly appointed her for only one
year to complete the unexpired term of Judge Leon Higgenbotham, who
died before his term expired. It appears also that the Chairwoman of
the Committee, Mary Frances Berry, has told the White House that she
refuses to recognize the President's new appointee, a person, by the
way, of impeccable credentials who is an attorney with a distinguished
career. Chairwoman Berry has indicated that it would take federal
marshals to seat the President's appointee when the Commission next
meets.
As if the American people did not have enough drama in their lives,
we hardly need something like this to further erode the public's
confidence in the Civil Rights Commission. I think many of us are
already concerned with the work of the Commission in recent years. They
have taken on rather partisan issues, or at very least they have
prosecuted issues in what often appears to be partisan ways, and
arguably injudicious ways. I will not get into these concerns, but I am
afraid that the Commission is doing great harm to the trust of the
American people.
Rather, I would like to comment on the current situation, which is a
matter of existing law. What is especially troubling is that it appears
that Chairwoman Berry and Ms. Wilson are refusing to comply with the
legal opinion of the White House Counsel, Judge Gonzales, as well as
the independent opinion of the Justice Department.
In 1994 Congress amended the provisions governing the appointment of
the Civil Rights Commissioners. Congress' intent was to ensure that the
terms of the Commissioners would not expire all at once. We made
provision for staggered terms for the Commissioners, adopting what is
universally deemed good practice in the private corporate and nonprofit
arenas. Staggered terms preserve institutional memory and experience.
To have staggered terms requires that an appointee named to fill an
unexpired term serve for only the remainder of that term. To do
otherwise would completely eviscerate the staggering that Congress
intended. The argument that Ms. Wilson, and Chairman Berry, is making--
that all appointments, and Ms. Wilson's appointment in particular, are
always for terms of six years--would create the untenable opportunity
for mischief if Commissioners were to resign at the end of a particular
administration. Commissioners could resign as a group, allowing a
departing Administration to fill several seats for six year terms, and
denying the incoming administration the right to name any
Commissioners.
This argument, not only makes no sense, but I am also afraid that
this sort of confrontational approach does very real harm to the
reputation of the Commission and its individual members who the
American people expect to be disinterested, apolitical public servants.
I invite my colleagues to urge the immediate resolution of this matter.
I ask unanimous consent that Judge Gonzales' letter be printed in the
Record.
There being no objection, the letter was ordered to be printed in the
Record, as follows:
The White House,
Washington, December 5, 2001.
The Hon. Mary Frances Berry,
Commission on Civil Rights, 624 Ninth Street, NW.,
Washington, DC.
Dear Madam Chairwoman: I am writing to confirm our
conversation yesterday about the recent expiration of
Commissioner Victoria Wilson's term of service on the U.S.
Commission on Civil Rights and the President's forthcoming
appointment of her replacement.
As we discussed, Ms. Wilson was appointed to the Commission
on January 13, 2000. Official White House records and Ms.
Wilson's commission issued by President Clinton, which
explicitly states that she was appointed by President Clinton
to fill the unexpired term of the late Judge Leon
Higginbotham, document that Ms. Wilson's term ended November
29, 2001. To be sure, in our conversation you stated that,
when Ms. Wilson received her commission, she attempted to
contact the White House Clerk to ask that her commission be
reissued to provide for the six year term she is now
claiming. However, the Clerk has no record of any such
request. In any event, the commission was never reissued, a
fact that can only be viewed as confirming the conclusion
that Ms. Wilson's term expired on November 29, 2001 in
accordance with her commission.
The Office of Legal Counsel of the Department of Justice
has issued a legal opinion confirming that Ms. Wilson's term
expired on November 29, 2001. The opinion rests on an
analysis of the Commission's organic statute, in particular
the intent of Congress expressed therein to provide for
staggered terms of commissioners. The legislative history of
the 1994 amendments to the statute also makes plain that
Congress intended to preserve the system of staggered terms.
As you yourself noted in 1983 in testimony before Congress,
the staggered terms system was proposed by commission members
to limit the degree of political influence over the
commission. H.R. 98-197, 1983 U.S.C.A.A.N. 1989, 1992. Of
course, the orderly staggering of terms intended by Congress
would be frustrated if vacancies created through death or
resignation could be filled with commissioners appointed for
new six year terms. Ultimately, the balance between
continuity and change sought by Congress in allowing a fixed
number of new members to be appointed at regular intervals
would give way to a process in which Presidents and
commissioners alike could ``game the system'' by timing
resignations and appointments.
In our conversation yesterday, I explained the legal
position of the White House and the Department of Justice. I
also explained, that President Bush has selected an
individual--Peter Kirsanow--whom he intends to appoint to
succeed Ms. Wilson. Mr. Kirsanow is an extraordinarily well-
qualified individual. He is a partner with a major Cleveland
law firm and has served as chair of the Center for New Black
Leadership and as labor counsel for the City of Cleveland.
Because there is a vacancy on the Commission, the President
intends to appoint Mr. Kirsanow as a commissioner as soon as
possible.
You maintained, however, that you support Ms. Wilson in her
decision to purport not to vacate her position and to
continue service and to attend the Commission's upcoming
meeting on December 7. Moreover, you informed me that you do
not consider yourself to be bound by opinions of the
Department of Justice nor do you intend to abide by them or
to follow the directives of the President in this matter. You
further informed me that you will refuse to administer the
oath of office to the President's appointee. I advised you
that any federal official authorized to administer oaths
generally could swear in Mr. Kirsanow.
Finally, you stated that, even if Ms. Wilson's successor
has been lawfully appointed and has taken the oath of office,
you will refuse to allow him to be seated at the Commission's
next meeting. You went so far as to state that it would
require the presence of federal Marshals to seat him.
I respectfully urge you to abandon this confrontational and
legally untenable position. As to questions regarding Ms.
Wilson's status, we view these as a matter between Ms. Wilson
and the White House. With respect to Mr. Kirsanow, any
actions blocking him from entering service following a valid
appointment would, in my opinion, violate the law. The
President expects his appointee to take office upon taking
the oath and to attend upcoming meetings as a duly appointed
commissioner. The President also expects all sworn officers
of the United States government to follow the law.
In sum, the law and official documents make clear that Ms.
Wilson's term expired last week, November 29, 2001, and that
she is no longer a member of the U.S. Commission on Civil
Rights. As soon as Mr. Kirsanow takes the statutory oath, the
incumbent commissioners and staff should treat the
President's new appointee as a full member of the Commission.
Sincerely,
Alberto R. Gonzales,
Counsel to the President.
____________________