This Whole Burris Thing

January 9, 2009

I preface all of the following with the caveat that I have no significant knowledge of constitutional law whatsoever, and am only familiar with this case insofar as I am a somewhat diligent reader of the news and have read the arguments of several people who do know a thing or two about constitutional law, such as Lawrence Tribe, Jack Balkin, Walter Dellinger, and Sandy Levinson. And I am saddened to say that while I wish I could agree with Profs. Tribe and Balkin (and apparently Barack Obama) that the Senate has the constitutional power to refuse to seat Roland Burris, in fact I find the arguments of Sandy Levinson and Walter Dellinger, that Burris has a right to his seat, to be more persuasive.

I say that this saddens me because I find it distateful at a minimum that a corrupt, likely criminal governor who is currently being impeached made an 11th hour appointment to the Senate – AFTER he had already been caught red handed trying to sell that seat to the highest bidder – and we have no alternative but to recognize that appointment.

The Consitution, however, does appear to be rather clear on the matter. The 17th Amendment provides for the states to give to their governors the ability to fill vacant senate seats by interim appointment. The Illinois legislature has long granted this power to the governor of that state. When the appointment was made, regardless of the farce that was taking place, Rod Blagojevich was the legal governor of the state, and therefore his actions in this regard, prima facie, were legitimate.

The Constitution also provides for the Senate to judge the qualifications of its own members and gives that body the power to refuse to seat a member if their judgment is that she or he fails to meet those qualifications. However, the Constitution is equally clear about what is meant by qualifications in this regard, and the meaning is strictly limited. In particular, the Supreme Court ruled in Powell v. McCormack (1969) that the qualification in question are those delineated in the Constitution itself: age, length of citizenship, residence of the state in question. Burris clearly meets all of these qualifications.

The branch onto which scholars such as Prof. Tribe are clinging is the Senate’s ability to “ judge…the elections, returns and qualifications of its own members,” interpreting this to mean that the Senate can refuse to seat Burris by arguing that the appointment itself was of questionable legality or propriety. Specifically, because there is already ample evidence that Gov. Blagojevich has solicited bribes for the very same Senate seat, any appointment by Blagojevich to that seat can be called into question.

This is by no means a weak argument. However, as Sandy Levinson points out, if this argument were to be accepted, it would open the door for the Senate to challenge nearly any appointment where there is even the slightest whiff of impropriety. Let’s say, for example, that Gov. Paterson of New York does, in the end, appoint Caroline Kennedy to the seat vacated by Hillary Clinton. The argument could be made that Paterson was making this appointment in return for access to the not insignificant Kennedy donor list (in fact, such an argument would be quite strong). You could argue that there is no direct evidence of a tit-for-tat bargain being made, however, there is no evidence (yet) of such an arrangement being made between Blagojevich and Burris either.

The argument over whether or not the Illinois Secretary of State must certify the appointment is, I believe, immaterial, and Profs. Levinson and Tribe are both in agreement on this point. Today’s court ruling on the matter, in fact, makes it quite clear that while nothing compels the Secretary of State to certify the appointment, this in no way legally hinders Burris, by itself at least, form taking his seat in the Senate. The Senate may indeed have its own rule that an appointment must be certified, but I find it unlikely that such a Senate requirement would withstand constitutional scrutiny by the courts.

At any rate, my take on this is next to worthless compared to the great legal scholars who have weighed in at length on this issue. At best, I hope I have provided a not incorrect summary of the principal arguments. I do, however, urge my readers to read the following and make up their own minds:

Here is a link to Lawrence Tribe’s article in Forbes.

Here is Walter Dellinger’s op-ed piece in the New York Times.

Here is andy Levinson’s argument posted on Jack Balkin’s blog, Blakinization.

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