Civil rights activists have opposed confirmation of President Reagan's nominees to the Civil Rights Commission, claiming that the president's decision to replace incumbent commissioners destroys the commission's independence and makes it captive to the views of the White House. This canard has been advanced notwithstanding the admitted high quality of the nominees. It is flawed, both legally and factually, as an analysis of the concept of independence will make clear.
There is little, if any evidence that the president lacks legal authority to replace members of the commission. As Chief Justice Earl Warren pointed out in Hannah v. Larche, the commission is a "purely investigative and fact-finding body . . . it does not adjudicate and it cannot take any affirmative action." Thus, in Justice William Douglas' words, the commission is not an "arm of Congress. It is an arm of the Executive." Since the commission's enabling statute does not set specific terms for commission members, the conclusion that they are appointed at the president's pleasure is inescapable. Last Thursday's vote by the House to insulate the present commissioners from presidential removal except for cause only serves to reinforce this conclusion.
The case law governing the presidential removal power confirms this common-sense view. The operative Supreme Court opinions, Humphrey's Executor and Weiner v. United States, teach that the president is restrained from removing members of independent agencies when they have fixed terms or when they act in judicial capacities rendering judgments and rewarding damages. With the Civil Rights Commission, neither condition applies.
Historical precedent uniformly reinforces this legal analysis. After President Kennedy's election, all the Eisenhower nominees offered their resignations, as did all Kennedy nominees after Lyndon Johnson assumed the presidency. While both presidents chose not to appoint replacements, their authority to do so was never questioned.
With President Nixon's election, civil rights advocates busily began building a theory that the commissioners' political independence is conditioned on permanent job security. However, when Nixon requested Chairman Theodore Hesburgh's resignation, he complied, albeit reluctantly. In fact, of the seven presidents in the office since the commission was created, only Ford and Carter failed to assert presidential authority over the membership of the commission.
Many senators affirm the president's constitutional authority to replace the commissioners, but argue that wholesale removal will result in a loss of political independence. This claim is strange indeed. The political independence of the president's nominees depends on their character and integrity. If these nominees are the sort of people who will succumb to presidential blandishments, then wholesale replacement will destroy the commission's independence. If they are made of sterner stuff (as every senator has made haste to certify), then they will ignore politics in their considerations.
Ultimately, the avowed senatorial concern for independence ends up as an attempt to impugn the integrity of the proposed nominees--a claim that the nominees, whatever their past civil rights records, so desire preferment that they have made commitments to the White House that will hurt their performance. Alternatively, the Senate must find that they lack the gumption to stick to their views should the phone ring from the Oval Office. There is not a scintilla of evidence that this is the case.
The Reagan appointees already serving on the commission have shown clear proof of their independence, veering from White House views on numerous occasions, most notably by demanding and reviewing, over Justice Department objections, the affirmative action plans of all government agencies.
In contrast, the commission under Democratic administrations has shown an abysmal lack of independence. During the Kennedy years the commission's staff director, Berl Bernhard, met weekly with members of the Democratic National Committee. The commission postponed hearings at the request of the Justice Department. According to Harris Wofford, President Kennedy's chief civil rights aide, commission lawyer Bill Taylor was "informally assigned" to the White House to develop a coordinated civil rights strategy.
Of course, one might argue that the senators' definition of independence depends on the nominees' ability to gain the acceptance of the civil rights community. On this view, a commission is independent of the president only when it is controlled by its primary client constituency. Is obeisance to special-interest politics a serious criterion?
The independence issue has been raised for one reason and one reason only--to deflect public attention from the central issue in the debate over the Civil Rights Commission nominations--the role of numerical quotas in national civil rights policy. The civil rights movement has made numerical quotas the litmus test of commitment to our national goal of equality under law. Democratic senators have apparently climbed on board the quota train, but don't wish to admit it.
The Reagan nominees to the commission, Morris Abram, John Bunzel and Robert Destrow, have extraordinarily rich records of service to the cause of civil rights--as does Linda Chavez, the proposed staff director. The quality of these appointments is such that their opponents resist a debate on their merits, agreeing with Sen. Howard Metzenbaum that nothing the nominees "can say or do can have relevance."