Durbin: We Still Won't Seat Burris
Dick Durbin just made a very bold announcement, in the wake of the Illinois Supreme Court decision that Roland Burris does not need the Secretary of State's signature on his certificate: As far as the Senate is concerned, Burris still needs that signature for his appointment to be legal and valid, and the seat will just have to stay vacant.
"At this point we've clearly reached an impasse," Durbin told reporters in Chicago.
Most legal scholars at this point believe the Burris appointment to be legal, and that an attempt to keep Burris out can be successfully challenged in court. But it's become obvious by now what Durbin's and the whole Democratic leadership's strategy is: Keep stalling on this thing long enough for Rod Blagojevich to be kicked out of office.
they will lose in court
January 9, 2009 5:35 PM | Reply | Permalink
Absolutely, Democrats will lose in court.
But Democrats, who ran against the culture of corruption, don't have much political choice but to fight this to the very bitter political end. Otherwise, they'll never hear the last of Mitch McConnell saying, "See, the Democrat Party is the party of corruption."
January 9, 2009 5:40 PM | Reply | Permalink
It depends on what they argue. If the Democrats argue for the necessity of the IL SoS signature, I think it could go either way...but they'd likely lose. If they argue that they're exercising their Art. I, Sec. 5 discretion, I think they'd win.
Despite a lot of references to Powell v McCormack, I just don't think that case is particularly relevant here.
January 9, 2009 5:45 PM | Reply | Permalink
Why is the Powell case not relevant? It seems to speak directly to the Art. I, Sec 5 discretion question.
January 9, 2009 5:48 PM | Reply | Permalink
There is a whole different set of facts and circumstances here. In Powell, there was no question as to the propriety of the election. No question of shenanigans at all.
Keep in mind that the central issue in Powell was an attempt to add qualifications to the office. In this case, the Senate isn't trying to keep Burris out on account of some new qualification; they're instead relying on the elections and returns clause to claim some defect in the process by which he's come to the Senate door.
If all of this is done in good faith, I don't see why the courts would intervene.
January 9, 2009 5:59 PM | Reply | Permalink
Yes, I'm inclined to agree that Powell is not as relevant as some are making it out to be.
January 9, 2009 6:12 PM | Reply | Permalink
I am skeptical of the argument in favor of the Senate's authority to judge appointments. Professors Akhil Reed Amar (Yale) and Josh Chafetz (Cornell) published a widely quoted article in [i]Slate[/i] arguing that the Senate has this power because Article I, Sect 5 makes each house the judge of "Returns." The professors claimed that, according to the Oxford English Dictionary, one meaning of the word "return" in the time of the framers "involved a report of an appointment made by a sheriff or other official." From this, the professors conclude that, as Judge of Returns, the Senate is Judge of Appointments.
The professors only paraphrased this definition without providing it, and unfortunately I don't have easy access to the Oxford English Dictionary. The reference to reports from sheriffs in their paraphrase, however, makes it sound suspiciously like what is commonly known in the legal practice as a sheriff's return. Here is the relevant meaning of "return" from Black's Law Dictionary (6th Ed.):
"The act of a sheriff, constable, marshall, or other ministerial officer, in delivering back to the court a writ, notice, process or other paper, which he was required to serve or execute, with a brief account of his doings under the mandate, the time and mode of service or execution, or his failure to accomplish it, as the case may be."
As you can see, a sheriff's return has nothing to do with appointments. Its just proof that someone has been served.
Maybe there is a definition in the Oxford English Dictionary which shows that the framers understood "returns" to mean "appointments." If someone could post that definition, I would be interested to read it.
Regardless, consider the actual wording in the relevant phrase in Article 1, Sect 5: "Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members...." Placing the word right after "Elections" strongly suggests to me that the framers had a much more common usage of "return" in mind: election returns. That would mean that, quite sensibly, the framers gave each House authority to judge the conduct of elections ("Judge of Elections"), the counting of election results ("Judge of Returns"), and qualifications of their members ("Judge of Qualifications"). That makes a lot more sense to me than reading "Returns" to make the Senate the Judge of Appointments.
Here is a link to the Slate article discussed above: http://www.slate.com/id/2207754/
January 9, 2009 7:54 PM | Reply | Permalink
They don't have to win in Court though. All that they have to do is delay. Its pretty easy to slow down legal proceedings, even if your best argument isn't very good.
I suppose Roland Burris could still argue that he remains the junior Senator from Illinois on the grounds that no appointment by Governor Blagojevich's can be effective because there wasn't a vacancy (i.e., the seat had already been filled by Burris's appointment). I suspect Burris will have a heavy burden to meet before convincing a court to unseat a member accepted by the Senate.
January 9, 2009 8:02 PM | Reply | Permalink
Jvamon:
Who cares if it loses in court - since by then Blago will have been impeached. The whole POINT is to force the guy to take it to court - a process that takes weeks or months.
MY questionis: Since when do the official acts of an impeached governor suddenly become invalid?
In other words, if the appointment is LEGAL and VALID - then how doe sit suddenly become ILLEGAL or INVALID merely because Blago is impeached after the fact?
Just curious.
January 9, 2009 5:37 PM | Reply | Permalink
Burris is the Senator from Ill., the only person that can change that is Roland Burris. He can resign BUT I dont think he will do that.
January 9, 2009 5:49 PM | Reply | Permalink
Not until he raises his hand and takes the oath of office.
January 9, 2009 6:01 PM | Reply | Permalink
That's a dubious assertion. Take the oath of office does not make one legally appointed to that office.
For example, the actual term of office to the Senate in the 111th Congress technically started on January 3rd as per Section 2 of the Twentieth Amendment of the Constitution. In other words all the current Senators (old and newly elected/appointed) became Senators on that time and date. It wasn't until 3 days later they took the oath of office solemnizing what had already taken place legally. This is how Norm Coleman for example technically became and ex-Senator this past Saturday when his term ended.
Point is, that oath of office is not he act that makes one the holder of an office, but rather the actuating authority of law (i.e. Constitutional and statutory legal instruments).
January 9, 2009 8:01 PM | Reply | Permalink
Article VI requires Senators to take an oath: "The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States."
I think its implicit that they don't hold the office until they've taken the oath.
January 9, 2009 8:28 PM | Reply | Permalink
Nope.
That article requires they take an oath, but that is not what the explicit actuating legal authority for when someone legally has office which is laid out under Amendment XX section 1:
(emphasis mine)
Our Class II Senators technically became Senators at noon on January 3, 2009 as per the above legal instrument in the Constitution. They then took the oath 3 days later on Tuesday the 6th, 2009. They were already technically Senators form noon three days prior. They were simply compelled by the Constitution to take an oath, but were already technically Senators at that point for three days.
January 9, 2009 9:05 PM | Reply | Permalink
But you're talking about elected Senators. When does a term for an appointed replacement begin? I would suppose when the Senate officially accepts his certification. As that hasn't happened yet, Burris only gets to chisel "U.S. Senator - designate" on his mausoleum. That has a decidedly less inspiring ring to it.
January 9, 2009 9:19 PM | Reply | Permalink
Fair point, but I don't agree. Article VI clearly makes the oath a qualification for office. Regardless of whether the term of office (i.e., the period in which they are [i]entitled[/i] to hold the office) has already begun, they don't actually hold the office until they meet all the qualifications, including the oath.
January 9, 2009 10:02 PM | Reply | Permalink
So you are seriously suggesting that we don't legally have Senators and Representatives in the House for several days between when the previous office holders terms ended and the time half a week later they take the oath?
I would also point out that the oath is not what makes them legal office holders, but rather they shall take an oath and are bound to said oath. That however is no the legal authorizing instrument for assuming office.
January 9, 2009 10:32 PM | Reply | Permalink
What I am saying is that the oath of office is a qualification for office and they don't hold they office until they meet the qualifications, which includes the oath. This means that ***new*** members don't actually hold the office until they have taken the oath. I don't think your conclusions about not having a Senate or House in early January follow from that.
BTW: Note the language of Senate Rule III regarding oaths:
"The oaths or affirmations required by the Constitution and prescribed by law shall be taken and subscribed by each Senator, in open Senate, *** before entering upon his duties.***" (Emphasis added.)
January 9, 2009 11:01 PM | Reply | Permalink
Nope. Oath of office is not a qualification for office. It is requirement once in office to take and (as you note) taking up their duties of office.
The point is, we are not left without Congress-people in Senate or House for 3 days once the previous term ends on the 3rd and they are sworn in on the 6th.
January 10, 2009 1:40 PM | Reply | Permalink
I guess we'll just have to agree to disagree on that. I think the Senate rule that I quoted above if fairly clear on this point. I also don't think that it's particularly troubling that we might be "deprived" of new members of Congress for three days while both Houses are out of session.
If you want further discussion on this point, you might check Dionisopoulos, A Commentary on the Constitutional Issues in the Powell and Related Cases, 17 J. Pub. L. 103, 111-115 (1968), which was cited by the U.S. Supreme Court in Powell v. McCormack, 395 U.S. 486, 520 n. 41 (1969).
January 10, 2009 6:30 PM | Reply | Permalink
I think the idea that actions taken by a government official under indictment/impeachment are in some sense illegitimate is pretty standard?
January 9, 2009 5:55 PM | Reply | Permalink
At the time Blagojevich appointed Burris, he had been neither impeached nor indicted. (He still hasn't been indicted.)
And both impeachment and indictment are charges - not determinations of guilt - that requires a conviction.
Yeah, it sounds like Blago did some sleazy stuff. But like it or not, he's still, legally, the governor.
And how does ignoring the Constitution - not just Blago's legal right to appoint, but also that nagging little issue of innocent until PROVEN guilty - make the Senate any better? To me it smacks of the garbage, the willingness to toss the Constitution out the window, that we've been living with for the past 8 years.
January 9, 2009 9:33 PM | Reply | Permalink
Interesting. The IL-SC said the appointment is valid under Illinois law. However, it's not clear whether that trumps the Senate rule requiring both signatures. This distinguishes it from the Powell precedent in which he was, IIRC, properly certified.
January 9, 2009 5:40 PM | Reply | Permalink
The Illinois Supreme Court has no jurisdiction over the US Senate. But is there an actual Senate rule that requires the SoS signature?
January 9, 2009 5:48 PM | Reply | Permalink
That would seem to me to be a "qualification" as per Art I Sec 5. As long as it's been applied consistently, I can't see how it can be overruled.
January 9, 2009 5:58 PM | Reply | Permalink
I'm not sure what you're getting at here.
My point was that there may not be a provision in the Senate rules requiring a SoS signature. And ever if there were such a rule, I don't see how the Senate could defend it. In other words, it's up to the state of Illinois to decide the form of the certificate of appointment. I don't see how the Senate can legally exclude Burris just because his certificate wasn't endorsed by White.
On the other hand, the Illinois Supremes can't force the Senate to seat Burris. Neither can the federal courts, if the Senate in good faith suspects the appointment is flawed by bribery or fraud.
January 9, 2009 6:08 PM | Reply | Permalink
From the article:
"Durbin said the Senate cannot waive a 125-year-old rule requiring the signatures of both the governor and the secretary of state on any election or appointment."
So, yes. There appears to be a requirement.
January 9, 2009 6:14 PM | Reply | Permalink
As I wrote earlier, I don't see a way for the Senate to keep the rule if it's challenged in court.
January 9, 2009 6:18 PM | Reply | Permalink
In 1969, the SC ruled that Congress has the right to set the rules for its membership. The rule currently states that the appointment papers must be signed. There is nothing to challenge since this matter has been settled 40 years ago!
January 9, 2009 6:45 PM | Reply | Permalink
The rules only apply to those actually admitted to the Congress.
January 9, 2009 6:53 PM | Reply | Permalink
Do you have the case name for that?
I would be interested to read up on what they ruled and the circumstances therein.
January 9, 2009 8:45 PM | Reply | Permalink
Are you referring to Powell v. McCormack?
January 9, 2009 10:42 PM | Reply | Permalink
One more thing. According to the ISC ruling:
So, is the ISC incompetent or is Mr. Durbin being dishonest?January 9, 2009 6:44 PM | Reply | Permalink
Not just Durbin, but Reid who said the same thing in the presser yesterday, that the rule went back to the 1800s.
So what rule is it, Rule II cited as not saying such a thing according to the IL SC ruling yesterday?
Who is right about what Rule II says or is there some other rule being asserted by Reid and Durbin?
January 9, 2009 8:05 PM | Reply | Permalink
Seems the Illinois court may have screwed up in its decision about what the Senate rules are (see the full Rule II cited down-thread. The relevant part being:
(emphasis mine)
January 9, 2009 9:13 PM | Reply | Permalink
That rule doesn't actually say that the certificate must be signed by the Secretary of State in order for the appointment to be valid. It only says that the name must be recorded. In this case, the proper name to record would be [BLANK].
Any other reading of the Senate Rules would run afoul of Amendment XVII: "When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct."
There's nothing there about a role for the Secretary of State.
January 9, 2009 10:15 PM | Reply | Permalink
Scroll down and read #1 of that rule. The credential shall be in order. Those credential, as noted in #2 consist of certificates signed and countersigned by Gov. and Secretary of state of a Senator.
January 9, 2009 10:38 PM | Reply | Permalink
Nope.
Nothing in Rule II states that counter signature by the Secretary of State is required as a credential. The rule states only that the Secretary of States' name will be recorded. The Illinois Supreme Court got that right.
Granted, one could make an argument that the reference to the Secretary of State implies that the signature is required. The Senate's rules, however, should be construed, if possible, in a way that renders them constitutional. Construing the rules as requiring the Secretary of States signature would make them unconstitutional, and therefore that interpretation must be disfavored.
By the way, I trust that you aren't suggesting that the phrase "in order" means that the Secretary's signature is necessary for the credentials to be "in order." All that the rule says is that presentation of credentials is always "in order" (in the parliamentary procedure sense).
January 9, 2009 11:17 PM | Reply | Permalink
I not only suggesting it, but saying it outright. Countersignature is part of the credentials that must be presented and recorded by the Senate Secretary.
January 10, 2009 1:41 PM | Reply | Permalink
Then you are misreading the Rule.
January 10, 2009 6:05 PM | Reply | Permalink
As long as the appointment is not certified, it lacks legitimacy even if "valid" under state law per the ISC. The ISC decision gives the US Senate grounds to seat Burris but I don't see it legally forcing them do seat him.
I hope Obama's team is not being distracted by all this hoopla.
January 9, 2009 6:16 PM | Reply | Permalink
As long as the certificate of election is authentic, I don't see a way for the Senate to maintain that it absolutely, positively has to have the SoS signature to admit Burris.
January 9, 2009 6:21 PM | Reply | Permalink
The requirement for Secretary of State sign off is based on the central role of state Secretaries of State: Keeping elections honest. So for the Senate to require that signature to be there is a pretty good safeguard. In the extreme, a state could always impeach its SoS and install another to provide the signature. Lacking that move, an SoS's judgment should be deferred to. Nobody else is as close to the election (even if election by a single governor) or as likely to be cognizant if something is crooked about it.
January 9, 2009 6:55 PM | Reply | Permalink
It's a fine thing to have a SoS endorse certificates of election and appointment. But I don't think the Senate actually has the power to force a state to include the signature in order to get full representation.
If challenged in court, I simply don't think any such rule would survive.
January 9, 2009 7:02 PM | Reply | Permalink
Don't bet on that.
See the Standing Senate rules I cite below, which have the force of Article I of the Constitution powering it.
January 9, 2009 9:08 PM | Reply | Permalink
Except that the Illinois Secretary of State, Jesse White did register the appointment. He just refused to sign the form that Blago filled out for certifying the Burris appointment.
The Supreme Court of Illinois said in the ruling today that Burris can file a standard copy fee and get a copy with the state seal and rubber-stamp signature of the Sec. of State on the copy (ala official birth certificate copy, etc.) and I don't see how Burris would not have all the paperwork that Reid and Durbin dubiously claim that Senate Rule II (if that is what they are indeed hanging their hat on) demands be presented for seating Burris.
January 9, 2009 8:12 PM | Reply | Permalink
To tie up two lines of discussion...Unless I've missed something, the Senate (or anyone else, for that matter) hasn't really claimed any defect or suspicion of fraud. I agree they could do so and then have legal grounds, but they haven't yet, and all their public statements have been to the contrary.
As for the other question, that's really the point I was asking about initially. If Illinois law specifies one form of certificate and the Senate requires another, does Illinois law trump Senate rules? It seems pretty murky, but a certificate with two signatures could certainly be considered a "qualification", as long as it's been consistently applied.
January 9, 2009 6:20 PM | Reply | Permalink
In early December, all the Democratic senators signed a letter invoking Art. I, Sec. 5 and making it clear that the charges of seat-selling by Blago cast a serious cloud over any appointment he might make.
Now, it's true that Reid hasn't trumpeted that letter too much lately. Instead, we get this nonsense about the SoS signature. But I think the "defect" angle is a much stronger one, legally.
Also, while the Illinois Supremes can't trump Senate rules, I think the Senate can't maintain that the certificate of appointment absolutely requires the SoS signature. If the Senate is taken to court over that question, I think they'd lose.
January 9, 2009 6:31 PM | Reply | Permalink
I agree that the defect angle is unassailable, which makes one question why they haven't pushed it. Perhaps they have sotto voce. A lot goes on behind the scenes that we never hear about.
As for the question of the SoS signature, I think they could make a very compelling argument that as sole judge of qualifications, they have the inherent right to a reasonable definition of what those qualifications are. In Powell they were trying to invent a new qualification. That's not the case here. A properly signed certificate is a reasonable qualification. It's just a matter of whether requiring a SoS signature to be proper would pass muster. If there's a 125 year history of its being applied consistently, I wouldn't bet against it.
January 9, 2009 6:44 PM | Reply | Permalink
Another point however, and not to rip the scab off of Bush v. Gore, but in that legal debacle the entire thing that the SCOTUS claimed was the clock being run out by still counting the votes was missing the safe harbor of the State appointment of all or any of the electors. That was all after the Florida Secretary of State (she who shall not be named) had already certified the returns.
Granted that was for the office of POTUS and not the Senate, and that Bush v. Gore says within the decision itself that this applies only to the matter before it (i.e. the 2000 Presidential election) and no others (i.e. the case was a one-time only special decision not to be used as president, which BTW is proof alone that the decision was fucked up). That said however, the Senate could have refused the slate of electors since they are the judge of the the returns of elections to office.
So does appointments sweep away such adjudication of returns by the Senate?
Are "returns" the trump card the Senate can or is willing to play?
At the end of the day there are some really murky angles and potential bad precedence this sets either direction.
January 9, 2009 8:26 PM | Reply | Permalink
The problem with construing signature by the Secretary of State as a qualification is that it throws you straight into the holding of Powell v McCormack. The only qualifications for serving in the Senate are those specified in the United States Constitution. Signature by the Secretary of State isn't one of them.
January 9, 2009 10:27 PM | Reply | Permalink
DEFECTS = Not a U.S. Citizen and too young . . .
Neither 'defect' is of issue . . .
January 9, 2009 7:14 PM | Reply | Permalink
Suspicion of fraud in the appointment, Blago made it.
If say Oregon Secretary of State Bill Bradbury here in Oregon falsified the General Election returns from November 4, 2008, does that invalidate our new Senator Jeff Merkely's legal claim to office previously held by now former Senator Gordon Smith?
If that theoretical fraud occurred here in Oregon, how is that in principle any different than Blago's suspect appointment?
Even if Burris was not involved himself in a pay-to-play for the seat (which has not been claimed directly) does the fact that there is real suspicion that others were not considered for the seat out-of-hand by Blago because he felt they would not pay-to-play (Jarret as one example)...?
January 9, 2009 8:35 PM | Reply | Permalink
I'd say that state law trumps Senate Rules in this case. Amendment XVII specifically assigns state legislatures the task of authorizing the state executive to make an appointment.
January 9, 2009 10:32 PM | Reply | Permalink
Can you guys tell me what you think about this story from the New York Times http://thecaucus.blogs.nytimes.com/2009/01/09/illinois-court-finds-burriss-senate-appointment-valid/ Did this happen before Durbin had his news conference or after and does this solve the situation?
January 9, 2009 6:34 PM | Reply | Permalink
Hmmm. Curious as to what "document" the New York Times blog post you cite refers to when it says this:
Is that a certified copy of the registration that White signed back on December 30, 2008 that Blago had appointed Burris to fill the vacant Senate seat which the Illinois court ruled today (PDF) Burris could get by simply filing for a certified copy and pay the small copy fee?
January 9, 2009 8:44 PM | Reply | Permalink
Harry, Dick, don't be hairy dicks! The man is no worse than most of your members and certainly not worse than Lieberman.
January 9, 2009 6:53 PM | Reply | Permalink
Yep . . . DEMONcrats roll over enthusiastically for the Dark Sith Lord CHEE-NEE and his Chimp-in-Charge sidekick . . .
BUT . . .
Let a fellow DEM get appointed to the Senate and a line the depth and breadth of the Grand Canyon gets drawn in the sand.
January 9, 2009 7:10 PM | Reply | Permalink
I am trying to figure out what good it does to stall until Blago is impeached. Clearly legal acts taken by the Governor prior to his impeachment are legal. He appointed Burris, nobody has said a bad word about Burris or his appointment. Burris is Senator regardless of Blagos future removal from office.
January 9, 2009 7:26 PM | Reply | Permalink
Precisely.
How are they going to undo a valid and legal appointment?
No matter what happens to Blago, Burris is not accused of anything, and Blago indisputably had the power to appoint as the executive fo the State.
So, all this grandstanding by two old men against an old black man ...just is bad bad politics.
Especially, the use of this arcane trivial 139 year old rule. Just incredibly foul.
Burris is the Senator. Let him sit and get out of the way.
January 10, 2009 2:56 AM | Reply | Permalink
The reason for Blago's impeachment and impending indictment is the seat in question. If you believe that one should not gain from a criminal action, then Burris is not to be seated. The fact that there is or will be a crime involved in this appointment makes any appointment by Blago radioactive.
I think Burris would be a disaster for the democrats anyway, but that aside, he walked into the controversy that few would consider. To seat him is to lose the seat in two years.
There is legal and there is justice. Screw the legal, send Burris packing.
January 9, 2009 7:50 PM | Reply | Permalink
What criminal action involving Burris?
January 10, 2009 1:08 AM | Reply | Permalink
I am sorry but we have had enough "screw the legal" during the last 8 years. I am sick of arbitrary "justice."
January 10, 2009 1:10 AM | Reply | Permalink
Burris is a scumbag who is willing to sell his soul to Blago to help him fuck with everyone on his way out the door.
No one else in Illinois is as scummy to accept an appointment from a man about to be impeached for selling the same god damned appointment.
After you shop around a senate seat to the highest bidder and get arrested for it YOU DO NOT HAVE ANY MORAL STANDING TO MAKE THE APPOINTMENT ANYWAY! .... even if you find someone as amoral and opportunistic as Burris. Even if they can play the race card to give you cover in the PC world of Dem politics.
This whole thing STINKS and you all just play and amuse yourselves with legal technicalities and that is what makes honest people want to cry.
January 10, 2009 1:47 PM | Reply | Permalink
Sick of arbitrary justice? Are we talking about the same country? There has never been anything but arbitrary justice in this country, especially when it comes to minorities. Seat the man and lets move on to things important.
January 10, 2009 2:17 PM | Reply | Permalink
For background on what rule it is assumed that Reid and Durbin are referring to:
January 9, 2009 8:51 PM | Reply | Permalink
I just don't understand why they're messing with this signature argument. As I've said before, I think it's reasonably likely to win, but they've got what appears to be a 100% slam dunk by just questioning the validity of the appointment based on the complaint alleging sale of the office. The Senate would be completely within it's constitutional authority to say that the appointment is questionable and refer the matter to the black hole known as the Rules Committee for investigation. That should bottle it up for more than enough time for Blago to be removed from office and Quinn to rescind the appointment. Burris can sue until hell freezes over, but no court is going to intervene while the Senate is investigating.
Why screw around with a questionable tactic when they've got a sure thing?
January 9, 2009 9:11 PM | Reply | Permalink
I don't disagree.
I never said Reid and Durbin were the sharpest knives in the drawer.
January 9, 2009 9:15 PM | Reply | Permalink
It could just be that they don't want to impugn Burris publicly by suggesting that he was a part of anything untoward. Arguing over the SoS signature is so much more civilized. But if Burris should sue, they could bring out that argument if they needed to. I wouldn't be surprised if they told him and/or his attorney that privately.
January 9, 2009 9:23 PM | Reply | Permalink
I agree. I think they putting up the most collegial hurdles up first, but have others lined up as he clears those.
January 9, 2009 10:41 PM | Reply | Permalink
A lot of the stuff written above is so loopy I can't read it. Think "separation of powers." The legislative branch doesn't need "court" (the judicial branch) to validate its internal rules.
January 10, 2009 3:34 AM | Reply | Permalink
This is a Legislative matter and the Judiciary may decline to hear it at all. Even if it gets into court, Powell is distinguishable for at least 2 reasons: 1) Powell was ELECTED and the Supreme Court emphasized this in its decision; 2) there was no suggestion of impropriety in Powell's election which is utterly contrary to Burris' appointment, where the governor is suspected of attempting to sell that very same senate seat. Between the appointment distinction and the process taint, the Supreme Court may well reach a different conclusion.
In accepting this tainted appointment under such circumstances and by allowing his advocates to cry racism, Burris has shown himself to be dishonorable. We don't need any additional dishonorable members in the U.S. Senate. I hope he's kept out.
It's long past time we recognized that a lot of what is presently wrong with America is our win at all costs mentality. Integrity, decency, and honor should be rewarded, and overweening greed (for power, money or fame) should be abjured. In the end there are not enough rules or laws to make a democracy function properly: character is what fills the gaps.
Let's start here and now.
January 10, 2009 8:15 AM | Reply | Permalink
Agreed, wbgonne.
Anyone who watched Burris standing there while Rush used the race card and still supports Burris needs to take a good look in the mirror.
The Senate has rejected or delayed two dozen appointments - including a Dupont and Boss Quay - and must exercise due diligence to determine if the appointment is legal.
Should a Governor be blackmailed or forced by threat of violence to sign his name to a piece of paper, the Senate may reject the appointment. And it is the job of the Rules Committee to ensure that the appointment process was legal.
In this case, the Governor was arrested for attempting to sell the seat. He has been impeached by the Illinois State House for his actions, and an impeachment trial is pending.
The argument that "nobody has said Burris did anything illegal" is specious. The arrest and impeachment of the Governor are legal facts. The Senate has the absolute right and duty to determine that the Burris appointment process was legal.
And the Illinois State Supreme Court has no more power to tell the U-S Senate what to do than did the Mississippi State Supreme Court back in the days of Ross Barnett. Dillon's Rule rules.
I doubt if the Roberts Court, which has been cautious in its actions, would quickly jump into this legal thicket.
I also doubt whether Blago the Clown will remain in office more than a month, given the time frame set out by members of the Illinois State Senate.
Given that scenario, I wonder what would happen if the new Governor appoints someone while the Burris appointment is still pending. Would the Senate get to choose the new Junior Senator from Illinois from Column A or Column B(lagojevich)?
And, in any case, I wonder how the Senate Republicans will vote on seating Burris. Conservatives have been screaming for him to be seated, because he will be the poster boy for corruption and the race card, and they can't wait to have at him in 2010. But if 41 Republicans can deny Al Franken his seat, they could also deny this five-time loser his seat as well.
It's a shame the rights and representation of 11 million people are at stake here, because this is so damned entertaining. And the circus is far from over.
January 10, 2009 10:43 AM | Reply | Permalink
Maybe Blago the Clown is setting up an insanity defense like that Mafia boss who used to wander around NYC in his pajamas. Blago will probably call Tennyson and Kipling as witnesses.
January 10, 2009 11:09 AM | Reply | Permalink
Principals vs Principles:
What's more important?
We are suppose to be a nations governed by "the rule of law". But it seems to me that the "rule of law" is not merely "the rules" but also the "spirit" of the law. Moreover, spirit of the law is grounded in some ideas about principles of justices and fairness -- not just technicalities.
With regards to Illinois, what this should mean -- in my humble opinion -- is that the application of the law (of its principles) should be apply equal independent of the principals involved.
So consider this.
* Suppose the Governor was someone named Simon and suppose there were charges of criminal malfesicant made against him.
*And suppose he, within the authority invested in his office, appointed someone name Stevenson to temporary occupy the office of the junior U.S. Senator from Illinois. (Repeat: "with the authority invested in his office".)
*And suppose the Illinois Secretary of State (a right wing Republican)refused to co-sign the document certifying the Governor's appointment.
*And suppose Illinois Supreme Court ruled that the Secretary of State's signature was not required (that there was no basis in Illinois law for requiring such a signature).
*And suppose the United State Senate (with a 60 vote majority) decided that it would not seat Stevenson) based on the legal technicality that the Illinois Secretary of State had not signed the certification document (even though the Illinois Supreme Court ruled that such a signature was irrelevant.)
*And just for fun, let's say that those trying to find legal reasoning for preventing Stevenson from being seated tried to apply statue regarding "elections" to trump statues regarding "an appointment".
Would this attempt to prevent Stevenson from being seated pass the smell test of fairness? Of principled behavior? Of role-modeling the ideals of American Democracy? Perhaps an example for teaching high school civics? Any thoughts?
January 10, 2009 11:36 AM | Reply | Permalink
Fair questions. Excellent questions.
Agreed the SecState signature is a technicality, UNLESS the SecState can provide a good and legal reason for not signing. The burden of proof would be on the SecState that he had knowledge the signature was not legal or was part of a criminal action or conspiracy.
I think the issurance of the Writ of Mandamus was premature in this case. I believe the Illinois Supreme Court should have required SecState White provide the reasons for his refusal to sign. Had he knowledge of a criminal conspiracy - or strong reason to believe one existed - he might have legal reason NOT to be a part of it with his signature.
The Senate can certainly vote not to seat Burris, but it would - no doubt - have some 'splainin' to do. The case would no doubt end up in the Supreme Court, which would set a high bar for the Senate to justify its action.
You bring up the phrase, "authority invested in his office," and that is key. No Governor has the authority to sell a Senate seat, nor does he have the authority to even try.
The issues that a court would have to decide here would be:
1) Once a governor begins a process to illegally sell a Senate appointment, does he forfeit his right to make that specific appointment, even if he eventually decides not to sell it? Is the process so tainted that any subsequent appointment can be rejected?
2) To what extend is an appointee held blameless for the illegal acts of the governor who appointed him?
So the direct answer to your question is that the
Court should set a very high bar for the Senate to refuse to seat an appointee. Very high. And that only in such matters as the attempted sale of the seat could the Senate meet that threshold.
The SecState signature issue is a formality. A legal sideshow. A delaying tactic. A protection against forgery, and possibly a means of exposing criminal behavior. But using it alone to deny someone a Senate seat? No way.
January 10, 2009 1:19 PM | Reply | Permalink
Thoughts? Sure, but I'll base them on the reality, not the theoretical. If "Simon" had already been indicted for, among other thing, trying to sell the Senate seat, and if "Stevenson" accepted the appointment knowing that, and if "Stevenson," who happened to be a black man, then tried to manipulate the Senate by falsely crying racism just when the first black president was about to be sworn in and the country was finally beginning to move past its racial divisions, then "Simon" can go to hell, instead of the United States Senate.
Does that answer your questions?
January 10, 2009 12:59 PM | Reply | Permalink
Someone say "amen."
Amen.
He came come out of the rain and go straight to hell.
January 10, 2009 1:24 PM | Reply | Permalink
No wbgonne.
Your response DOE NOT answer the question. Let me rephrase my question. Does governor (any governor) have the authority of his or her office up UNTIL he or she no longer occupies that office (even if the governor is a moral basket case)?
Yes or No?
Your snarky moralism does not seem to deal with this question. You talk about reality. So do I. The reality is that Burris's appointment would appear to be legal and that the efforts of our Democratic Senators to prevent the seating of Burris would appear to be without legal foundation.
If this is true and our Democratic Senators are attempting to prevent the seating of Burris even though they have no legal justification for doing so, then I was hold that their behavior is shameful. After all, we should be striving to me a nation based on "the rule of law". Correct?
With regards Homer J's point: if Burris appointment itself did in fact involved a "pay for play" deal, the it would seem to me that the Senate would have the grounds for not seating Burris (and if later it was discovered that his appointment had been a "pay for play" deal, then it would seem to me that the Senate would have grounds for expelling him). But my understand of law is that you can't "punish" someone unit after you have proven them "guilty".
January 10, 2009 3:53 PM | Reply | Permalink
This is a political question, not a legal question. Yet you entirely ignore the several objections to Burris.
I already gave my opinion is the matter does end up in court. But much more importantly, professed fealty to the sanctified Rule of Law is often the refuge of scoundrels. I'm sure you can think of examples.
January 10, 2009 4:36 PM | Reply | Permalink