Peter Kirsanow, the U.S. Civil Rights Commission's newest member, enjoyed a brief moment of welcome from his chief opponent on the panel before Friday's meeting returned to the usual tensions between its Democratic and Republican members.
"Let us first welcome Mr. Kirsanow – welcome," Chairwoman Mary Francis Berry said Friday to the commissioner whom she has vigilantly claimed has no right to be there. He replaces one of Berry's supporters, Democratic appointee Victoria Wilson, whose term on the commission expired last year, according to a critical federal appeals ruling May 10.
In fact, it wasn't until almost two hours into the meeting that the commission addressed the 800 pound gorilla in the corner – that the commission was appealing the U.S. Supreme Court to overturn last week's decision that allowed Kirsanow, an appointee of President Bush, to be there. Ironically, it was Kirsanow who first leveled the questions.
"When was it decided to appeal?" asked Kirsanow, a conservative labor attorney. "I don't know when the commission decided to do this – no action was taken by this commission. There seems to be a phantom commission with the authority."
Les Jin, the full-time staff director for the panel, responded that "in January, this body took up the issue of my decision to intervene. The majority of the commission endorsed my view. I was not aware of any limitations in that."
The panel was hardly in unanimous consensus about the decision to fight the nomination of Kirsanow to the post, which would give Republicans another peg in their two to four minority voting bloc. The Republican appointees, who include commissioners Abigail Thernstrom and Jennifer Braceras, vehemently opposed hiring outside counsel to defend Wilson's right to stay on the panel when the government stepped in to fight it out in court.
Kirsanow was appointed to the commission on Dec. 6 to fill the expiring slot held by Victoria Wilson. Wilson was appointed by former President Clinton in January 2000 to fill the vacancy of Judge A. Leon Higginbotham Jr., who died in 1998 in the middle of his term.
Wilson, with the backing of Berry and the Democratic appointees on the panel, refused to leave her seat, saying that her six-year term began when she took the position.
A lower court ruled that Wilson was indeed due six years on the commission, since a 1994 amendment to the commission's bylaws omitted any language on mid-term vacancies.
The appeals court ruled that the original 1983 mandate stood since no change was made to it.
With Kirsanow and another potential Republican appointment waiting in the wings, the panel could move to a 4-4 political split for the first time since the mid-1990's. In the minority, Braceras and Thernstrom have long complained of unfair treatment due to Berry's strict control of the agency.
However, another fight for equality on the civil rights commission looms over the vacant seat formerly held by Republican Russell G. Redenbaugh.
Although the nomination to fill the slot would normally go to Senate Majority Leader Tom Daschle, D-S.D., he made the last congressional appointment in 1999, and according to a tradition of "congressional courtesy," is expected to hand over the nomination to Sen. Minority Leader Trent Lott, R-Miss., in the interest of keeping the congressional appointments fairly split.
But so far, Daschle has not said whether he will keep that courtesy. Nor has Lott said whether he will make the nomination.
As for the latest addition to the panel, Berry has said repeatedly that the lawsuit was not about Kirsanow, but about the law and the panel's independence, which she charges has been infringed upon by the administration.
Berry, who has been on the panel since the Carter Administration, said that the staff director had the authority to made decision the Supreme Court appeal and if there is a commissioner who disagrees, they "could introduce a motion" to that effect.
Democratic Commissioner Christopher Edley concurred, and said that there is a "long-standing practice" at the commission that the chair and the staff director "speak on behalf of the commission," subject to question or debate, at the next scheduled panel meeting.
But the Republicans aren't buying it. They said Berry has written letters to government officials with opinions on public policy on their behalf, without their consent, and most recently planned a June trip to discuss election reform in Florida without informing them of the date. They said they read about the trip in the news.
"It's a disgrace, I want that on the record," said Braceras.
Kirsanow's nomination fight has drawn the attention of the media, as well as members of Congress. On Friday, Sen. Orrin Hatch, R-Utah, welcomed the Republican to the panel and expressed concern that the commission was continuing to fight his appointment.
"I commend Mr. Kirsanow for the patience and dignity with which he has comported himself in the face of the legal histrionics that have greeted his appointment," he said in a statement.