Uncivil Fracas Over Civil Rights Commission Heads to Court

WASHINGTON – Another punch was thrown Wednesday in the very uncivil fight over the make-up of the U.S. Civil Rights Commission when the chairman of a House Judiciary subcommittee warned the commission head that her recent conduct on the panel might be unlawful and could lead to her removal.

In a letter to chairwoman Mary Frances Berry, Rep. Steve Chabot, R-Ohio, chairman of the Subcommittee on the Constitution, called Berry's refusal to seat a Bush appointee and the commission's subsequent hiring of outside counsel to defend her position, an "abuse of office and unlawful conduct."

"The public is entitled to a Commission that obeys the law and carries out its responsibilities in a principled matter," he said. "Your entire course of conduct in this matter does neither."

Chabot urged Berry to seat Bush's appointee Peter Kirsanow at Friday's commission meeting and withdraw her attempts to keep him off of the panel. Up until now, he said, "your actions in this instance... may be sufficient to justify your removal from the commission for malfeasance of office."

An attorney for Berry said the chairwoman had not read the letter late Wednesday and therefore would not comment.

Meanwhile, the courts awaited arguments Wednesday from both parties to one of Washington's ugliest political feuds in years.

The fight centers on whether the White House has a right to replace commission member Victoria Wilson, whose term the administration says ended on Nov. 29, 2001. Berry, who supports Wilson, disagrees, and has retained outside counsel to help keep Kirsanow off the panel.

American University Professor Richard Semiatin calls the dispute a "political tempest in a teapot," one with the potential of turning into a "very, very nasty political fight" that "the White House doesn't need right now."

But the White House is not backing down. Kirsanow, a black labor lawyer from Cleveland, is the rightful heir to the seat, administration officials say, and the Justice Department is taking Wilson to court.

"Peter Kirsanow is the rightful member to the commission," said White House spokeswoman Anne Womack. "This has nothing to do with threatening their independence. We're taking this measure to preserve the independence of the commission."

Critics say Berry, a 21-year member of the commission and chairwoman since 1996, is refusing to allow the Kirsanow appointment because she is afraid of losing her extraordinary influence over the panel, which has no legal authority but nonetheless receives $9 million a year to hear civil rights complaints.

Berry, who says she is an independent but consistently votes with Democrats, now enjoys a 5-3 political majority. If Kirsanow is seated, there will be a 4-4 political split on the panel. Such a split would leave Berry's ability to advance Democratic issues decidedly diminished, observers say.

Most recently, Berry used her influence to release a report without the consent of the GOP commissioners that declared election practices in Florida were racially discriminatory and resulted in skewed results in favor of Bush in the 2000 presidential campaign.

Last weekend, Berry wrote the administration asking Bush to drop the Justice Department lawsuit against Wilson. In the letter, Berry said the White House was being "counterproductive" by "trying to interfere with the commission's independence."

Berry refused to seat Kirsanow at a Dec. 7 commission meeting, a day after he was sworn in to replace Wilson, whose term the White House argues ended Nov. 29, 2001, the expiration date for the term of the late Judge A. Leon Higginbotham, Jr. Wilson was appointed by former President Clinton to replace Higginbotham following the judge's death.

Wilson and Berry argue that any newly appointed member gets six years on the commission and that Wilson's term doesn't actually expire until 2006.

Another showdown is expected when the panel meets again Friday. A court ruling is expected Monday at the earliest.

Berry has apparently dug in for the long haul. Last week, she retained outside pro bono legal services for the commission to intervene on behalf of Wilson.

Berry hired the outside lawyers "to ensure that the commission's views are fully articulated and its interest adequately protected," according to a letter from staff director Les Jin to the commissioners dated Dec. 21.

Republicans and outside legal observers on the commission say Berry does not have the right to hire outside counsel to fight legal battles against the government.

"We are unaware of any legal basis for the engagement of private outside counsel by the commission, and we are deeply concerned about the serious ethical and legal issues that would be raised by the use of taxpayer funds for this purpose," wrote Bush appointee Commissioner Jennifer Braceras on behalf of herself, Commissioner Abigail Thernstrom and Kirsanow, in a letter to Jin.

The dissenters argue that the commission should not be hiring outside legal assistance — whether it is paid for by tax dollars or free — because it means one federal agency fighting another.

"The notion of one agency of the federal government essentially suing another agency of the government raises some very serious questions about the role of the chairperson in this very dicey legal issue," said attorney Rob Kelner, who is representing Kirsanow. "We think the attempt by the chairperson to intervene in this case borders on the bizarre."

The Justice Department has not yet announced whether it will ask the judge in the case to deny the intervention sought by Jin and Berry, according to Charles Miller, a spokesperson for the department.