Who Will Monitor the Monitor? Commission on Civil Rights Chairman's Uncivil Manner Screams for Scrutiny
by David W. Almasi
We are taught that there are three official branches to our government: the executive, legislative and judicial. Some consider the media a fourth because it shapes public opinion. But there is reason to believe one person - Mary Frances Berry, chairman of the U.S. Commission on Civil Rights - considers herself a fifth branch.
Although she's only a political appointee, Berry engages in behavior setting her apart from the rules normally governing her pay grade. Her actions spur charges that she's turned the Commission and its $9 million budget1 into a soapbox for her liberal political views. When challenged, she hides behind the cause of civil rights.
Berry recently put the Commission on Civil Rights at odds with the White House by refusing to seat President Bush's choice of black conservative civil rights lawyer Peter Kirsanow to replace Commissioner Victoria Wilson, previously best-known for as the editor of Anne Rice's novels. Wilson was appointed in 2000 to serve out Judge Leon Higginbotham's term after his death. Berry insists Wilson can serve a full six-year term even though appointment papers issued by the Clinton Administration note her term ended on November 29, 2001.2
When Berry refused to seat Kirsanow last December 7, she explained that she believed the Commission must maintain its "independence" from the rest of the government. She said the Commission monitors government, free from normal checks and balances.3
On February 4, a Clinton-appointed judge sided with Berry. The Justice Department has appealed the decision. Commenting on her victory, Berry declared: "This court upheld the independence of the commission... This ruling shows us that no Justice Department, no White House can tell us what to do."4
Berry's behavior regarding Kirsanow is not an isolated case. The Commission on Civil Rights deserves intense scrutiny by Congress and the White House, and that only way to reform the Commission may be to remove Berry.
Berry recently subpoenaed three Bush cabinet members to testify before the commissioners on February 8 on "environmental justice." It's the first time in at least 20 years that the Commission has asked even a single cabinet secretary to testify, much less three. It's been speculated the reason for the subpoenas, which are expected to be ignored, is more of a way to get back at the President over the Kirsanow appointment than a genuine effort to discuss environmental justice.5 At an earlier meeting, ostensibly called to investigate environmental justice issues, the liberal commissioners used the issue to bash businesses rather than discuss the negative financial effects government regulations and related environmental issues can have on minorities.
Berry plans to take the Commission "on the road" this summer to rehash the 2000 presidential election results in Florida.6 Although the agency already issued a report critical of the outcome (and tried to squash a rebuttal submitted by conservative commissioners), Berry apparently feels the need to follow-up their work. The findings are likely to be released just prior to the 2002 national congressional elections and the Florida governor's race in which President Bush's brother Jeb is up for reelection.
Then there's conservative commissioner Abigail Thernstrom's "book-burner" allegation. When University of Maryland professor Christopher Foreman, Jr. wrote favorably about Thernstrom in a book review for the Commission's Civil Rights Journal magazine, staff director Les Jin ordered the review be removed from the upcoming issue. Jin is a close associate of Berry, and Thernstrom charged the review was spiked a Berry's request. Foreman, who testified against Berry's form of environmental justice in January, called Jin's actions "corrupt." Jin later reversed himself.7
Beyond the partisanship, the Berry reign at the Commission on Civil Rights has been plagued by financial irregularities. A 1997 Government Accounting Office (GAO) audit found "an agency in disarray, with limited awareness how its resources are used." The GAO found only 10 percent of the agency's budget was spent on investigations related to its founding mission, and that Commission staff withheld vital financial information. Berry stonewalled during congressional testimony on the GAO audit, and her supporters alleged a racist conspiracy against her leadership.8
President Bush has the ability to replace Commission staff
director Les Jin. Congress can exert more oversight and reduce
the agency's budget for not adhering to its mission. After the
Kirsanow controversy is over, Chairman Mary Frances Berry herself
could, potentially, be removed for obstructing justice. If something
is not done, tolerance of her activities will essentially make
her a government unto herself.
1 Neely Tucker, "Judge Rejects Bush Pick for Civil Rights Agency," Washington Post, February 5, 2002.
2 Bill Sammon and Steve Miller, "Civil Rights Chairman Rebuffs Bush Bid," Washington Times, December 6, 2001.
3 Personal notes of David W. Almasi, U.S. Commission on Civil Rights meeting, December 7, 2001.
4 Ellen Sorkin, "Court Bars Bush's Appointment to Civil Rights Panel," Washington Times, February 5, 2002.
5 Steve Miller, "Rights Commission Subpoenas 3 in Cabinet," Washington Times, January 25, 2002.
7 Lloyd Grove, "Civil Rights Commission? Hardly!" Washington Post, January 24, 2002.
8 Judith Coburn, "There's Something About Mary," Salon.com, October 12, 1999, downloaded from http://www.salon.com/news/feature/1999/10/12/berry/print.html on December 6, 2001.
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David W. Almasi is the executive director of The National
Center for Public Policy Research, a non-partisan Washington,
D.C. think tank. He can be reached at [email protected].