The Federal government’s freestyle interpretive gymnastics did not end when the man who was uncertain regarding the meaning of “is” left office.  On January 13, 2000, President Clinton appointed Victoria Wilson to fill a vacancy on the U.S. Civil Rights Commission, a roving band of allegedly independent and bipartisan officials tasked with the job of determining the state of civil rights in the nation.  Wilson was to fill the rest of the term of A. Leon Higginbotham, Jr., a retired activist judge who had recently died.  As was the custom, the President expressly limited Wilson’s tenure to the remaining years left in the six-year term of Mr. Higginbotham, so her appointment should have expired on November 29, 2001.  Accordingly, on December 5, President George W. Bush appointed a new commissioner, Peter N. Kirsanow, to take the place of Victoria Wilson.  Four of the eight commissioners are appointed by the President, while the other four are appointed by Congress.  By statute, each of the commissioners is to serve a six-year term, and that is the problem.

When Kirsanow arrived at the commission’s first regularly scheduled meeting after his appointment, on December 7, and sought to present his credentials and take his seat, the chair of the commission, Mary Frances Berry (nominally an “independent”) ruled that he could not be recognized because the commission did not allow participation by “members of the audience.”  This was Kirsanow’s status, in her opinion, because (according to Berry, Wilson, and three of their fellow commissioners) there was no vacancy on the commission.  In their view, Wilson was entitled to serve a full six-year term from the date she was appointed.  Accordingly, Wilson refused to give up her seat until 2006.  Another of the Wilson-friendly commissioners, Christopher Edley, a Harvard law professor, argued that, whatever her commission had said, the governing statute provided for six-year terms, and that was that.  The White House, he continued, was simply showing “an impulse to ignore the law for political purposes.”

Washingtonians were aghast at the seemingly illegal actions of Mary Frances Berry, Christopher Edley, Virginia Wilson, and the other two recalcitrants, and stern denunciations were issued from op-ed pages and assorted Republican pulpits.  In the dark of night (literally) on December 7, the Bush administration filed a pleading demanding that a court order the commission to seat Kirsanow.  At first blush, the Bush administration seemed to have the better argument, since the six-year terms for commissioners had been set up so that there would be rotation in office, and this rotation would be effectively maintained by limiting Virginia Wilson to the term provided in her appointment.  But under the current statute governing the commission, passed in 1994, Berry, Edley, Wilson, and their colleagues have an interesting point.  The previous statute, passed in 1983, expressly stated that interim appointments extended only for the term of the replaced commissioner, as Wilson’s appointment had.  But the 1994 statute omitted that provision, providing simply for six-year terms.  The United States Code Annotated, which is an authoritative source for these matters, carries no explanation for the omission, but Democratic Congressmen John Conyers, Jr., and Jerrold Nadler were quick to claim that the omission was deliberate, and thus each appointee is guaranteed a full six-year term.

If, by its own terms, it violates the statute, is Virginia Wilson’s appointment void from inception, in which case a court should remove her?  Or should the commission simply carry out the clear statutory directive and let her have her remaining time in office?  Should the statutory scheme of staggered terms trump the clear words of the statute?

The issue is important, because the Civil Rights Commission had racked up quite a record of criticizing Republicans (especially during the presidential election in Florida), and most of the “independents” seem to be perpetually allied with the Democrats against the three Republican-leaning appointees.  If President Bush succeeded in placing Kirsanow on the commission, Mary Frances Berry would no longer have her five-to-three majority, thus ending her ability to embarrass the administration.  A court decision, however, might not matter since another seat is set to open on the commission, one currently held by one of the anti-Berry commissioners, an “independent” allied with the Republicans and a congressional appointee.  In past years, when such a commissioner allied with a particular party left the commission, the Senate leader of the commissioner’s party was accorded the privilege of dictating who would fill the vacancy, in order to fulfill the statutory scheme of bipartisanship.  But the statute expressly provides that the vacancy be filled by the president pro tem of the Senate, which means that the actual power to appoint is in the hands of the majority leader.  It had been the custom, when the majority leader was not of the same party as the retiring commissioner, for the majority leader to follow the choice of the minority leader.  As this issue of Chronicles goes to press, however, Senate Majority Leader Tom Daschle is hinting that, since the statute effectively gives him the power to fill any vacancies in any manner he chooses, he will simply appoint a Democrat (or an “independent” allied with the Democrats) if the court seats Kirsanow.  And thus, in pure Clintonian fashion, the letter of the law may be used once again to defeat its purpose.