In a legal blow to the Bush administration, a federal judge ruled Monday that the president's appointee has no place on the U.S. Civil Rights Commission.
U.S. District Court Judge Gladys Kessler said that under current statutes, commissioner Victoria Wilson is entitled to a full six years on the commission despite the fact that she was appointed to fill out a term that expired Nov. 29.
The decision leaves Peter Kirsanow, appointed by President Bush to take Wilson's place, out in the cold.
"The text of the 1994 statute is clear," said Kessler, a Clinton appointee. "Commissioners will serve out six-year terms" regardless of whether they are fulfilling the rest of a predecessor's term, as in Wilson's case.
She said the 1994 amendment made no mention of mid-term appointments, or the use of staggered terms, therefore, Congress purposefully excluded mention of them to allow six-year terms to apply to everyone regardless of the nature of their appointment.
The Department of Justice, which filed a suit against Wilson to challenge her legitimacy on the panel, said immediately that it will file an appeal.
"We respectfully disagree with the Court's ruling," said DOJ Director of Public Affairs Barbara Comstock. "The court's interpretation of the Civil Rights Commission's statute has the potential to allow political gamesmanship to occur on what should be a bipartisan, independent commission. We are confident of our legal position and plan to immediately seek an appeal to the Unites States Court of Appeals for the District of Columbia Circuit."
Panel Chairwoman Mary Frances Berry said the ruling was a vindication of the commission's independence.
"No White House can tell the commission what to do," she said. "What I'm most pleased about is the court upheld the independence of the commission. It's what we've been fighting for in this case."
Former President Clinton appointed Wilson in January 2000 to fill the vacancy of Judge A. Leon Higginbotham Jr., who died in 1998 in the middle of his term. After Bush appointed Kirsanow in November 2001, when Higginbotham's term would have ended, Wilson refused to leave her seat saying that her six-year term began when she took the position in January 2000.
Wilson, with the backing of chairwoman Berry, based her case on the commission's organizing statutes. In 1983, Congress included language prescribing mid-term vacancies in an overhaul of the commission to make it a more independent body. In 1994, they overhauled the 40-year-old body again, and omitted the language for mid-term vacancies.
The government maintained that the language for mid-term vacancies was implied in the 1994 overhaul and the Bush administration was merely abiding by the law by filling the vacancy left by the expiration of Wilson's term.
Wilson, and now Judge Kessler, said that the language is not there and therefore the law is clear that all appointees are given the same six-year assignment.
Berry, a 20-year veteran of the commission who enjoys the strength and influence of a Democratic majority on the panel, said the Justice Department lawsuit was an infringement of the commission's independence.
The two outspoken and outnumbered Republicans on the panel said the entire matter was orchestrated by Berry to maintain control over the panel, which has a $9 million annual budget but no enforcement powers. They said she has used the commission to forward a Democratic agenda for the last 10 years.
The commission investigated voting irregularities in the 2000 presidential election in Florida and issued a report in the fall of 2001 saying minority rights had been violated. The commission plans to question Florida Gov. and Bush brother Jeb Bush this year.
The commission has subpoenaed several members of the Bush administration, including Housing and Urban Development Secretary Mel Martinez, Transportation Secretary Norm Mineta, Interior Secretary Gale Norton, and Environmental Protection Agency Administrator Christine Todd Whitman, to attend this Friday's meeting on environmental justice.
All of the secretaries are sending subordinates to the meeting. Kirsanow's attorney Rob Kelner said Kirsanow would attend commission meetings until the appeal is decided.