Wednesday, December 31, 2008
Burris Takes Legal Action To Enforce Senate Appointment
Gov. Rod Blagojevich appointed Roland Burris to the Senate vacancy of Barack Obama yesterday under the U.S. Constitution and Illinois law, but Burris' appointment is being frustrated by state and Senate leaders. Illinois Secretary of State Jesse White won't perform his ministerial act of signing Burris' appointment by the governor so the certification can be furnished to the Secretary of the Senate, the first step in being sworn into office. Burris has petitioned the Illinois Supreme Court for a writ of mandamus, compelling White to perform an act required of him by law. Once Burris crosses this hurdle, he will still face a second in the U.S. Senate, where Senate Majority Leader Harry Reid has vowed to block Burris from taking a seat in the Senate even though he possesses the constitutional qualifications to serve in the Senate. A controlling U.S. Supreme Court decision, Powell v McCormack, makes it unconstitutional for Congress to impose qualifications beyond those set forth in the U.S. Constitution when deciding whether to seat a duly-elected or appointed member.
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The Powell case does not address the Senate's Constitutional power to judge elections and returns, as opposed to qualifications. These are the powers that the Senate is likley to invoke in chalanging the appointment of Burris. It is the appointment itself, rather than the qualifications of Burris, that the Seante is critical of.
There is no election to be judged here. A vacancy occurred and the governor appointed a replacement in accordance with the law. The only thing to be judged here are his qualifications. The Senate cannot say we think the guy who appointed him is a crook; therefore, we are not going to seat him. The Senate can point to no law the governor violated in carrying out the appointment of Burris. If it wants to conduct an investigation of its own to determine if there was something improper in the process, it can do that but only after it has seated him. This is what the Senate did when the validity of Landrieu's election in Louisiana was contested. The Senate has nothing but unproven charges here. The U.S. Attorney has asked to delay issuing a formal indictment of the governor until April.
Jonathan Turley makes the point well on his blog:
The suggestion that the Senate might block the appointment is disturbing. The rarely used power to refuse to seat a member is confined to true election controversies where votes were not counted or elections were unfair. There is nothing illegitimate about this appointment. Regardless of how members may feel about Blagojevich, he is the unimpeached, unconvicted governor of Illinois. There is no allegations that Burris purchased this seat. Indeed, it would suicidal for Blagojevich to engage in such a quid pro quo in the face of a federal indictment.
Some have pointed to the case of Theodore Bilbo as an example of the Senate barring a controversial members. It would be ironic if Burris (an african american politician) where to be painted with the same brush as Bilbo, a vile racist and bigot. Burris is no Bilbo and this is not a good case of precedent for his denial. Bilbo was on his third term when there was the fight over his credentials. He was a vile racist who was accused of inciting violence to keep blacks from voting. I consider that to be a legitimate election controversy. There is nothing illegitimate about this appointment; there is no cognizable claim that Burris is not properly a member of the Senate. By the way, the problem is the Bilbo fight is that other Southern senators could have been accused of benefiting from suppression tactics of that kind. Bilbo ultimately died of cancer before the matter was resolved.
A more likely move would be to allow Burris to be sworn in while calling for an investigation to save face for the Democrats.
The same is true with the suggested refusal of the Secretary of State Jesse White to certify the appoint. Such an act would be based on the Secretary’s assumption of corruption. Absent impeachment or a criminal conviction, it is hard to see the authority for such an obstructionist position.
Burris is the next and legitimate senator from Illinois because he was appointed by the current and legitimate governor of Illinois. The rest is political posturing in my view.
The move may have a marginal benefit legally for Blagojevich. At his trial, he will be able to show that Burris was in the running from the start and ultimately did receive the seat without any allegation of corruption. This may strengthen the defense that all politicians explore how the use of political power will benefit them. Bill Clinton pardoned his own brother and a series of campaign contributors. In this conspiracy, Blagojevich will be able to show it was just a type of political trash talk. It will ultimately depend on those tapes and there may be some highly damaging parts since Fitzgerald seems eager to have legislators listen to them."
I am with AI on this one. There is no election results to judge. Pursuant to Powell, the Senate can only judge whether he meets the qualificaitons. From a legal perspective, I think game, set, match, Burris wins. Of course, politics and the law are not the same thing.
I happen to agree with much of the reasoning in these posts - Blago is the unindicted govermor, the SOS has no cause not to certify, and I suspect, would be ordered to by the Ill.Sup.Ct. if it came to that. Blago called Reid's bluff, now Reid either pushes challange or backs down. What the Senate clearly can do is not seat Burris pending an investigation, despite the fact that it has seated first and investigated later in some instances. Powell, in fact, was not seated in the 89th Congress, which is why the Court had to address mootness - he had already been elected again and seated in the 91st Congress by the time of the decision.
My point was that Powell is not going to be on all fours with the likeliest route of challange - that of the appointment, not Burris' qualifications. Certainly the Article cannot be read to pertain solely to elections, as no members of the Senate were elected at the drafting of the Constitution. In fact, there is a very reasonable argument that Powell is irrelevent to the situation with Burris. The Seventeenth Amendment superceded that portion of the Constitution which provided that Senators be chosen by state legislatures - certainly considered an "election or return" else the provision regarding Seante power would have been a nullity.
A poster at 538.com listed the following appointments challanged by the Senate:
Kensey Johns appointment (1794): Delaware governor appointed him on 3/19/1794, he presented his credentials on 3/24/1794, Senate referred the matter to an ad hoc Committee on Elections same day. Committee reported he was not entitled to a seat two days later, based on improper appointment.
James Lanman appointment (1825): Governor issued appointment while legislature was in recess, but prior to expiration of new term on 3/3/1825. Senate challenged appointment, and referred it to elections committee on 3/5/1825. Committee reported in favor of Lanman, but Senate denied his appointed 18-23.
John Allen, Lee Mantle, and Asahel Beckwith appointments(1893): legislature had failed to act, stuck in deadlock. So governors of Washington and Wyoming appointed them. Credentials presented march 1893, Referred to Committee on Privileges and Elections, committee reported back 3/27/1893, Senate vote in august to dney seats (Asahel had withdrawn).
This all does seem to be political posturing without very much of a legal foundation. Ultimately the Democrats are going to have to accept Burris after some sembelence of an investigation that clears the appointment of any known wrongoing. Should something crop up, perhaps part of the criminal process, implicating wrongdoing concerning Burris, the Senate would retain the power, with a 2/3 vote, to expel him. That seems highly unlikely, though.
In the end, the Democrats will likely say that they fought the good fight against a questionable appointment, but that the courts would not be expected to sustain any failure to seat Burris.
But is there much doubt that had Democrats said nothing and the appointment of Burris gone off without fanfare, the Republicans wouldn't have had a feeding frenzy because of the general guilt by association surrounding anyone that ever walked into the Illinois governor's office or called it on the phone?
Yep, whatever your political persuasion, politics is alive and well in our sister state.
The Rs are going to challenge everything the governor does at this point; however, to their credit, they fought to have the special election law passed during a recent special session and the Democrats blocked it after earlier saying they supported. The governor had agreed to sign the legislation. I think it can be fairly said that the Democrats' political posturing in this particular case trumpets is driving everything. Getting someone seated in the Senate as quickly as possible seems the least of their concerns. I also thought the Democratic central committee in Illinois could have met and recommended names to the governor who would be acceptable.
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