[Congressional Record (Bound Edition), Volume 147 (2001), Part 17]
[Senate]
[Pages 24321-24322]
[From the U.S. 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. 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

[[Page 24322]]

     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.

                          ____________________