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Civil Rights Commission rebuffs Bush appointee

Berry ruled commissioners who wanted Kirsanow seated were out of order.  

WASHINGTON (CNN) -- The U.S. Commission on Civil Rights refused to accept a new commissioner appointed by the Bush administration as he sought to attend his first meeting on Friday, setting up a potential legal battle over the appointment.

Commission Chairwoman Mary Frances Berry refused to acknowledge White House appointee Peter Kirsanow, who was sworn in to the position on Thursday and showed up at Friday morning's meeting but was not allowed to sit as a commissioner.

"Suggestions have been made that we should abide by the view of the White House and the Justice Department on this matter, and we've been asked why we're not doing that," Berry said. "We're not because it would threaten the very independence of this commission."

Attempts by Republican-leaning members of the commission to have him recognized were rebuffed by Berry, who ruled them "out of order."

The dispute centers on the seat held by Commissioner Victoria Wilson. The White House contends her term has expired, which prompted President Bush to name Kirsanow as her replacement. But Wilson has said her term is not finished, claiming her appointment in January by former President Bill Clinton was for a six-year term.

The White House has said that official records, including Wilson's commission document, "explicitly state" that she was appointed to the commission on January 13, 2000, to fill the unexpired term of the late Judge Leon Higginbotham. Wilson's term ended November 29, 2001, the White House has said.

Wilson's advocates said she attempted to contact the White House clerk to ask that her commission document be re-issued to reflect what she argues should have been a six-year term. But White House Counsel Al Gonzales said Wednesday in a letter to Berry that the clerk's office has no record of that request.

Wilson's attorney, Leon Friedman, a constitutional law professor at Hofstra University's law school, said the administration is wrong. "She's legally still a commissioner," Friedman said.

Under the 1983 statute governing the commission, a vacancy on the board means the replacement would serve for the remainder of his or her predecessor's term, Friedman said. That provision was eliminated when the statute was amended in 1994, Friedman added.

"The current statute simply states that the 'term of office of each member of the commission shall be six years,' " Friedman said. A "simple clerical error" on her commission document has created the misunderstanding, and that it should never have said her term expired in November 2001, Friedman said.

The White House disputed Friedman's interpretation of the law, saying that under the statute, Congress called for staggered terms -- meaning there are set beginning and end dates for each seat -- to prevent any president from being able to "game the system" by timing resignations and appointments.

"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," Gonzales wrote to Berry. He appealed to Berry to abandon what he called her "confrontational and legally untenable position."

"The president expects his appointee to take office upon taking the oath and to attend upcoming meetings as a duly appointed commissioner," said the White House counsel. "The president also expects all sworn officers of the United States government to follow the law."


• U.S. Commission on Civil Rights
• The White House

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