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Conflict at the Civil Rights Commission

By W. James Antle III
web posted December 10, 2001

In yet another highly publicized clash between the White House and the US Commission on Civil Rights, Chairman Mary Frances Berry refused to seat a new commissioner appointed by President Bush on the grounds that there was no legitimate vacancy for the president to fill.

Victoria Wilson was appointed to the commission by Bill Clinton in January 2000 to fill a vacancy created by the death of Judge A. Leon Higginbotham Jr., who died in office in 1998. Higginbotham's term expired November 29 and the Clinton administration's paperwork regarding Wilson's appointment lists this date as the conclusion of her term as well. President Bush appointed Cleveland labor attorney Peter Kirsanow to fill this vacancy, but Berry maintains the law requires every commissioner to be appointed to a full six-year term. This means that Wilson, who like Berry is a nominal independent who consistently votes with the commission's Democrats and adopts liberal positions, would not leave the commission until 2006, five years after the statutory end of Higginbotham's term and eight years after his death.

White House counsel Alberto Gonzales vehemently disagrees with this interpretation of the law and points out that such a policy would prevent staggered terms and circumvent a president's ability to place anyone on the commission. (Bush appointee Jennifer Cabranes Braceras was tapped to succeed Democratic commissioner Yvonne Lee and she was seated without incident.) Liberal Reps. John Conyers (D-Mich.) and Jerrold Nadler (D-NY) have weighed in with the argument that the law as amended in 1994 supports Berry's position. The end result was an embarrassing spectacle at which the three Republican appointees (only Braceras was named by Bush, the other two are congressional appointees) tried in vein to obtain recognition for Kirsanow as a civil rights commissioner while Berry and her Democratic-leaning backers referred to him as "some member of the audience" and voted to exclude him (including Wilson).

Without commenting on which side has better mastered the intricacies of the Civil Rights Acts of 1957 and 1983, the statutory basis for the commission's existence, the whole event underscores some very unfortunate realities. Once synonymous with the struggle of American minorities for economic advancement and equal rights under the law, "civil rights" today is a term used as a weapon in partisan struggles to promote liberal causes. The difficult but necessary pursuit of a color-blind America has been replaced with identity politics.


Berry herself has said, "Civil rights laws were not passed to protect the rights of white men and do not apply to them." There is so much wrong with that thinking. First, it assumes that the problem with such discriminatory systems as Jim Crow were not the fact that they denied individual merit or subjected citizens to different treatment by the law, but the actual outcomes they generated. The principle of non-discrimination is objective and compatible with the concept of the individual as a being with dignity and inherent rights. Departures from this principle are not justified by the fact they produce an outcome to Berry's liking anymore than segregation is justified by David Duke's preference for whites enjoying a preferred legal position in society. And of course, some would argue the Constitution was not written to protect the rights of blacks, women and others who were not property-owning white men, but consistent adherence to both its principles and those of the Declaration of Independence require that it apply to them.

If determining winners and losers on the basis of criteria such as skin color is an acceptable practice to meet certain social objectives, it will inevitably be a practice that can be used in the service of twisted racist ideologies. Yet Berry and her ilk persist in calling those who do not wish to see people who are not considered "protected classes" discriminated against by their own government "the opponents of civil rights."

Clarence Thomas has one of the most impressive records of cultivating color-blind policies and race-neutral application of the law, ranging from his tenure at the Equal Employment Opportunity Commission to the Supreme Court. For this he has been vilified as an Uncle Tom. Linda Chavez's criticism of racial preferences galvanized opposition to her becoming secretary of labor. Clarence Pendleton, who became the first black chairman of the US Commission on Civil Rights upon his appointment by President Reagan, was a dogged proponent of racial equality who often locked horns with self-described black leaders (he often asked, "Where are the white leaders?"). Michael Williams bravely, and ultimately unsuccessfully, worked to end race-based scholarships while heading the Department of Education's Office of Civil Rights.

None of them were angry white males and all of them understood the importance of addressing the problems impacting minority communities. Peter Kirsanow would do an excellent job of following in their footsteps. He is active in the Center for New Black Leadership, an innovative organization that challenges the traditional civil rights leadership's orthodoxy by attempting to address the crisis in the black family, promote educational excellence and encourage economic advancement through free-market policies. Rather than repeating the approaches that have produced broken families, failing schools and hopeless neighborhoods, Kirsanow has actively worked for progress instead of political posturing.

In other words, Kirsanow would use his position as a civil rights commissioner for actual civil rights work and addressing the problems minorities face. The panel's left guard would rather use it as a forum to racialize political disputes, such as the 2000 presidential election, and shout down commissioners like Abigail Thernstrom who question their conclusions.

Here we realize the main problem with Kirsanow's appointment. It would jeopardize Berry's power by reducing the left-wingers' presence on the panel from a 5 to 3 majority to a 4 to 4 deadlock. This fact, not alleged concerns about the commission's independence, is what motivates this grandstanding. Yet Berry is only keeping the commission independent of the Constitution and common sense.

A real body dedicated to the preservation of civil rights would have a vision of America as a place that lives up to the promise of the Declaration of Independence, not a body for bureaucratic bean-counting and racial politics. It remains to be seen whether the commission Congress set up for this purpose will be allowed to fulfill it.

W. James Antle III is a senior writer for Enter Stage Right and can be reached at

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