Seating Burris
Scott Lemieux observes that what the Senate Democrats are threatening to do in refusing to seat Roland Burris is probably illegal:
The Supreme Court ruled 8-1 (and 8-0 among justices deciding on the merits) in Powell v. McCormack that “in judging the qualifications of its members, Congress is limited to the standing qualifications prescribed in the Constitution.”
This is to say that Congress gets to offer definitive rulings on, say, a dispute over whether or not a Senator is really 35. But nobody disputes that Blagojevic is governor of Illinois. And nobody disputes that the Illinois Senate seat is vacant. And nobody disputes that the governor of Illinois is supposed to fill Illinois Senate vacancies. And nobody disputes that Burris was chosen by Blagojevic. And nobody disputes that Burris possesses the standing qualifications prescribed in the constitution. So it seems to me that unless the Senate has some reason to believe that Burris did something corrupt to obtain the seat, there’s neither grounds for expelling him nor for refusing to seat him.
On top of all that, I would have to say that Powell seems like a correctly decided case and that it would be right to apply the precedent to Burris’ case. It’s fine to say that the honorable course for Burris would be to have refused the appointment, but that’s different from saying that the Senate should be able to refuse to seat him merely because having him there would be politically awkward. Giving the Congress the power to arbitrarily exclude duly elected or appointed members seems like a seriously bad idea the more I think about it.
Additional observations: It’s weird for the Senate to get holier-than-thou about this given that one sitting senator is a family values advocate with a taste for hookers and that there was a bipartisan love-in staged on the occasion of Ted Stevens, convicted felon, departing from the Senate. If these guys can get weepy about Stevens, surely they can handle the vague air of impropriety hanging around Burris.
Also — this thing with governor’s appointing senators is one more of the various procedures of American government that makes no sense. Vacancies should be filled by special election.
76 Responses to “Seating Burris”
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December 31st, 2008 at 11:03 am
I agree that filling vacant elected seats with appointments is wrong and shouldn’t be done. But, it is the law. And, unless someone has evidence that Blago has shaken down Burris for some scratch, why don’t we just follow the law?
Now, the Illinois legislature has had weeks to impeach Blago or to change the law. They’ve done neither.
Enough posing, Senators! There’s work to do!
December 31st, 2008 at 11:04 am
Also….
This business about Senators deciding who will sit in the Senate is, itself, rife with potential for corruption. The people decide who sits there (OK, along with party bosses and special interests).
So, Burris has been repeatedly elected to statewide office, he has no allegations against him and is respected. Move on!
December 31st, 2008 at 11:05 am
You mean, of course, the Senate gets to decide whether a Senator is really 30, not 35.
December 31st, 2008 at 11:07 am
Also, while the Senate must seat someone who was duly elected and who meets the standing qualifications, the Senate may expel a sitting Senator for pretty much any reason. But the expulsion vote must be by a supermajority — I believe two-thirds of the Senators, but don’t quote me on that.
December 31st, 2008 at 11:12 am
MattY: You may wish to check the update from Harry Reid’s staff via FiveThirtyEight.com:
December 31st, 2008 at 11:13 am
A special election satisfies the democratic critique of gubernatorial appointment, but what about the loss of representation? Unless you have a nonpartisan special election, which presents its own weird outcomes (especially plurality victories by unpopular candidates running against two or more popular candidates from the other party), you are talking about 4-5 months to run a suitable primary then a general. Would Illinois (or New York or any other state) be served by having a vacancy until late April or May?
Ideally, we’d have both. A caretaker appointment immediately (in a real just-world scenario, the caretaker would be from the party of the Senator, not necessarily the governor) followed by a special election within 4-8 months. You can’t legislate the special appointee from running for the seat, but you could pick people who are extremely unlikely to run, retiring state Supreme Court Justices or professors or lifelong bureaucrats or something.
That won’t happen for the same reason a special election didn’t happen in Illinois. It isn’t in the governing party’s narrow self-interest to risk losing a seat in a special election with no (even short-term) incumbent.
December 31st, 2008 at 11:14 am
I disagree. In addition to qualifications, the Senate is also the judge of the “Elections” and “Returns” of its members by virtue of Article 1, Section 5. It’s pretty clear that the Senate could refuse to accept the results of an election it considered tainted by fraud. I don’t see any rationale for denying them the same discretion over a tainted appointment process.
December 31st, 2008 at 11:18 am
Nah, the mob loves NASCAR which is nearly grounds enough for putting some brakes on them. That so many of them have infiltrated the senate only underscores the need to keep it away from too many elections.
But regardless, do you read other blogs? A TPM reader pointed out that this provides a very visible contrast to GOP actions where Dems attempt to make a cleaner image and deny some ammunition to the republicans to make hay as well as being able to blame the courts when they lose.
December 31st, 2008 at 11:20 am
Correct me if I’m wrong, but doesn’t Blagojevic’s arrest and (pending?) indictment call into question his status as Governor? Especially if the illegalities he is accused of are directly related to appointing the open Senate seat. I’m just saying, procedure must proceed, but you can’t pretend that the process isn’t tainted.
December 31st, 2008 at 11:23 am
This is exactly what has concerned me all along. We’ve seen over the last eight years that Republicans will do anything for power/advantage regardless of law or precedent (see Texas mid-decade redistricting). I could see republicans using this as a precedent to block democratic appointments in the future. Why not. So and so dem gov is corrupt we won’t seat appointee regardless of law or precedent.
The law seems clear to me on this matter. Change the law if you don’t want this to happen in the future but don’t set the president that the Senate can choose not to seat an appointee because of one man’s taint.
December 31st, 2008 at 11:27 am
Why do dems decide to fight over this of all things? They cave time after time on anything Bush wanted over the last 8 years and now they decide lets have a backbone.
December 31st, 2008 at 11:34 am
Isn’t there a distinction between Harry Reid saying Burris won’t be seated in the Democratic Party caucus, and a hypothetical challenge to Burris being seated in the Senate at all?
I’m baffled by this debate, as I interpreted Reid’s comment as the former. But if someone can point me to the latter being the case, I’ll listen.
December 31st, 2008 at 11:34 am
This special election craze is incredibly unconvincing to me. Elections cost money and, maybe even ore relevant than that, take time to administer. I’m not exactly sure how it’s in the people of Illinois interest to spend money on a statewide special election to fill a Senate seat for 2 years rather than putting the money towards schools, food stamps, Medicaid, etc., especially as the economy heads downwards, or to have the seat remaining unfilled while the Senate is in session for that matter. And I’m really not sure how exactly a truly fair and competitive statewide election is supposed to be mounted in less than 2 months, especially in a large state.
At the end of the day it appears that Blago, for all of his issues, appointed a perfectly acceptable representative, and the people of Illinois will have a chance to vote on him in 2010. Why they need to spend money on a ham-fisted election that would inevitably be won by whomever could raise the most amount of money in a very short time I still don’t know, and most of the arguments for it seem to rest on an abstract, very romanticized, “good government” idea.
December 31st, 2008 at 11:36 am
1) I just this at the tail end of the earlier thread, but I’ll repeat it here: what people are overlooking is that subsequent Amendments modified the Senate’s Article I power.
Amendment 10 states: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
Amendment 17: “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.”
2) My reading is that the Senate doesn’t have the power to overrule what the State of Illnois decides.
December 31st, 2008 at 11:41 am
What would make the Democrats lose credibility is if the Senate Democrats are stupid enough to reject a man whose moral record is better than 70 percent of the Democratic Caucus –and thereby infuriate the people of Illnois into electing a Republican.
Last time I checked Burris had not voted to send 4000+ US soldiers to their deaths in an unnecessary war to seize non-existent weapons of mass destruction.
Last time I checked, Burris did not let George Bush run the economy into another Great Depression while dumping $6.3 TRillion of debt onto us.
Last Time I checked Burris had not let George Bush steal $3 Trillion from the Social Security Trust Fund.
Given that a significant faction in the Democratic Caucus has been sucking Israeli billionaire Haim Saban’s cock for the past 8 years, I don’t think they want to start a finger-pointing exercise over “moral propriety” . That’s the one discussion that could make Governor Blagojevic look like a fucking choir boy in comparison.
If some of you are too stupid to realize where this could head, I assure you the Republicans are not. Bill O’Reilly and Rush Limbaugh would piss themselves laughing as they evaluated every member in the Democratic Caucus to Reid’s “High Moral Standards”.
December 31st, 2008 at 11:46 am
If the Senate doesn’t have the power to reject the appointment, it seems like they should have the right to investigate whether this was a crooked appointment. Why not decline to seat the new Senator from Illinois and instead refer the case to a committee to consider whether there was anything fishy about how Burris was appointed? That investigation could take some time, maybe long enough for Illinois to impeach Blagojevic and for the new Governor to appoint someone else to the still-vacant seat. Then, that Senate committee could rule that the new appointment makes the Burris appointment moot and the new Senator gets seated. And if it works out that the new Governor considers many different candidates and finally decides to appoint a certain Roland Burris to the seat, problem solved.
December 31st, 2008 at 11:46 am
Today we learn that the taint of corruption is a problem for Matt if it involves Republicans – but if it involves Democrats, it’s just business as usual.
Not a huge surprise; Matt is mostly a partisan hack who takes his talking points from his boss, who in turn receives them from the DNC…
December 31st, 2008 at 11:52 am
The 40 or so Senate Republicans will be happy to vote for the black man against the evil lily-white Senate Democrats — who are trying to continue the old Southern Democratic tradition by shutting out the only Afro-American to be serving in the Senate.
I think the Republicans will be able to find 10 or so Democrats to join them –given that black voters are sizable swing voters in some states.
Even if they fail, the Republicans will be able to give their candidate in the Illnois special election a big boost by making political hay over this.
The Democratic leadership always seizes disaster from victory. This racist double-standard is the one thing that could make “Barack the Magic Negro” look like a harmless prank.
December 31st, 2008 at 11:55 am
Special elections cost a crap-ton of money, while a caretaker appointment would be fine. I wonder, however, why there isn’t some kind of confirmation hearing in the state legislature.
I’d been thinking that the state legislature should just appoint someone instead of the putting it in the hands of one person. You would think a recently-elected state legislature would be more representative of the public will
December 31st, 2008 at 11:57 am
Re Al’s comment “So, can anyone point me to the posts from the left-wing extremists threatening to impeach Reid if he does something blatantly illegal?”
—————
Reid WON’T do anything illegal — if he persists, this will be settled by the Supreme Court. We’re not talking about Bush-Cheney secret conspiracies/coverups here.
What Reid IS putting into peril is his reelection to Senate Majority Leader if this thing turns into the clusterfuck I think it is transforming into.
December 31st, 2008 at 11:58 am
The best argument for what Reid is trying to do is that if the Senate has the undeniable power to expel someone, they should therefore have the power to keep someone from getting in in the first place. I know this isn’t consistent with Powell, exactly, but it seems to me that as long as the Senate followed the procedures for expulsion vis-a-vis Burris, i.e. 2/3 of the vote, any legal challenges would be pretty weak. What’s the point of forcing the Senate to accept someone that they are just going to turn around and expel?
Of course the law loves pointless technicalities. But just call it a preemptive expulsion.
December 31st, 2008 at 12:01 pm
Southpaw’s got it–the Senate will not be judging Burris’ “qualifications,” but the “election” (which is to say, “choice”) that sent him to Washington. It’s hardly open and shut, because the Supreme Court hasn’t really spoken to the Senate’s power to judge “elections,” but that’s what the argument is going to be about.
Expulsion can be for any reason that gets a supermajority fired up enough to vote to expell. But if I were a Republican, I’d vote against expulsion. Why throw out a perfectly good campaign issue like that?
December 31st, 2008 at 12:03 pm
Thought experiment:
Let’s say that the Governor’s signature on a grant application is necessary for the State of Illinois to get a $35 million DOT grant for street repairs.
Do you think the department charged with submitting the grant application would refuse to allow Blagojevich from carrying out that duty?
Me neither.
December 31st, 2008 at 12:04 pm
I think it is really unfortunate that Burris would allow himself to be so closely associated with Blagojevich. Much of what I have read so far gives the impression that Burris is a good guy, and well qualified for the position. But this negative association he has subjected himself to has potential to be really damning for his career and his reputation.
In addition to Reid’s statement, Illinois Secretary of State has said that he will not sign anything that comes across his desk with Blago’s name on it (with the exception of his resignation or impeachment papers). I do not know what power that actually holds, but Burris really took a risk by accepting this appointment.
December 31st, 2008 at 12:06 pm
Re jeebus “But just call it a preemptive expulsion.”
—————
Do you think Reid can round up 66 votes to expel the only black Senator in the chamber?
Who has done nothing wrong?
A 71 year old man who has served the Democratic Party for decades? Whereas Reid just accepted Joe Lieberman into the Caucus, after Joe got up on national TV at the Republican National Convention and endorsed John McCain over Barack Obama.
December 31st, 2008 at 12:07 pm
“Southpaw’s got it–the Senate will not be judging Burris’ “qualifications,” but the “election” (which is to say, “choice”) that sent him to Washington. It’s hardly open and shut, because the Supreme Court hasn’t really spoken to the Senate’s power to judge “elections,” but that’s what the argument is going to be about.”
That still seems like an incredibly dubious argument, since the appointment mechanism is laid out in the 17th amendment, and there’s absolutely nothing about the Senate “judging” the appointment.
December 31st, 2008 at 12:10 pm
Yesterday I heard several blabbing heads stupidly describe this as ’stunning’: what really *is* stunning is that nobody gamed this out beforehand. I keep reading that Reid is a good parliamentarian, savvy leader, etc., but I just don’t see it. Team Obama has been sort of MIA on this too, but they have an excuse (more than one, actually). But I can’t shake the feeling that we have a lot of knuckleheads in the congressional dem caucus.
December 31st, 2008 at 12:10 pm
What does “8-0 among justices deciding on the merits” mean?
December 31st, 2008 at 12:10 pm
“Let’s say that the Governor’s signature on a grant application is necessary for the State of Illinois to get a $35 million DOT grant for street repairs.
Do you think the department charged with submitting the grant application would refuse to allow Blagojevich from carrying out that duty?”
It seems pretty clear to me that this is sort of what Blago is trying to engineer. He wants to bait other aspects of state government into refusing to deal with hi outright, at which point he’ll make a big scene about how everyone else is putting “getting Blago” ahead of the interests of the people and try to gin up some backlash against impeachment. A long shot obviously, but it’s probably the best he could do.
December 31st, 2008 at 12:11 pm
Re Theresa’s comment “In addition to Reid’s statement, Illinois Secretary of State has said that he will not sign anything that comes across his desk with Blago’s name on it”
————-
Amendment 17 to the US Constitution doesn’t say shit about something called the “Secretary of State”. It says chief executive of the State. That’s the governor.
December 31st, 2008 at 12:12 pm
Well, Cornyn is already indicating that the GOP will oppose provisionally seating the winner of the Minnesota Senate race if it’s a Democrat, so I’m not sure why they’d need precedent. Especially since he’s actually ignoring precedent about disputed election outcomes.
But yeah, this is all nauseating posturing from a Democratic caucus that wouldn’t even strip a committee chairmanship from someone who campaigned for a Republican for President, and whose deriliction in oversight of DHS has left the country less safe.
December 31st, 2008 at 12:13 pm
So Matt, a non-lawyer, is endorsing the legal analysis of Scott, a non-lawyer, and there you have it.
Whether this is legal is really up to the institutions that throw the levers of constitutional power: in this instance, the Senate, and maybe the Supreme Court.
December 31st, 2008 at 12:17 pm
This is just the kind of situation the term “kabuki” was invented for. The Democrats don’t want a special election (the Republicans might win), Burris would do just fine, and they’re stuck with Blago in office for the foreseeable future. So they will huff and puff for a while and then give in to Burris taking the seat, much to their unexpressed relief.
It’s time to realize that until they get rid of the guy, Blago is still governor. You just have to deal with that.
December 31st, 2008 at 12:19 pm
Do you think Reid can round up 66 votes to expel the only black Senator in the chamber?
Well, I don’t know. I suspect it wouldn’t be that much harder than rounding up 51, unless the GOP engages in shenanigans, which I actually don’t they will try. Why this should be cast in racial terms is beyond me: the Democrats made it clear that they would fight Blago’s appointment no matter who it was, before they had any idea it would be a black man. And after Blago is impeached, the new governor can appoint Jesse Jackson Jr. or whoever to maintain an African-American presence in the Senate.
What does “8-0 among justices deciding on the merits” mean?
One of the justices thought the Court shouldn’t even hear the case on the grounds that it was moot.
December 31st, 2008 at 12:19 pm
He’s actually not a bad seat-warmer at all. He’s old, has no chance of winning in a primary fight, and would be a reliable democratic vote.
I mean, terrible circumstances for him to be appointed in, and a relative political lightweight compared to others who could have been appointed, but as a pick, it’s objectively not that bad.
December 31st, 2008 at 12:20 pm
I think Matt’s post is a good analysis of this situation if it didn’t include on particular element: that the IL Secretary of State will not certify the appointment. The lack of certification gives the Senate some wiggle room with this, though a commenter above made a good point that the Senate can essentially expel anyone they want if they have the votes. My take on this, is that the Senate Democratic Caucus probably cooked up this idea about Burns not being legitimately chosen (via the denial of certification) in order to refuse to seat him. This is definitely going to the courts! Though I’d imagine an election in two years will probably come first.
December 31st, 2008 at 12:20 pm
Amendment 17 to the US Constitution doesn’t say shit about something called the “Secretary of State”. It says chief executive of the State. That’s the governor.
If you’ve quoted it correctly above, it doesn’t say “chief executive”; it says “executive.” Which includes the Secretary of State.
December 31st, 2008 at 12:21 pm
Amen, Matt.
December 31st, 2008 at 12:23 pm
Why does Matt insist on misspelling “Blagojevich”? And use the wrong first name? (it’s Rod, not Ron).
December 31st, 2008 at 12:24 pm
The updated statement from Harry Reid’s office is shocking — they now claim this is based on concerns about the integrity of the appointment process. But Reid and Senate Dems have destroyed the integrity of any such investigation of the Burris appointment by announcing originally that they would automatically reject anyone nominated by Blagojevich, and then by specifically denouncing and rejecting the appointment of Burris, prior to conducting any kind of investigation into the circumstances.
Also, it’s important to preserve the distinction between refusing to seat someone (not permitted), and expelling them (permitted), because once a person becomes a senator, they gain significant procedural resources that allow them to defend themselves.
December 31st, 2008 at 12:26 pm
Why does Matt insist on misspelling “Blagojevich”? And use the wrong first name? (it’s Rod, not Ron).
You’re new around here, aren’t you?
December 31st, 2008 at 12:31 pm
Why does Matt insist on misspelling “Blagojevich”? And use the wrong first name? (it’s Rod, not Ron).
You’re new around here, aren’t you?
Yes, relatively new. I don’t get it.
December 31st, 2008 at 12:33 pm
Certification by the secretary of state is a non-issue. If appointment to the Senate were contingent on certification, and certification was voluntary on the part of the secretary of state, then that would mean the secretary of state, and not the governor, is the actual appointing authority, because the secretary would make the final decision on whether an appointment moves forward. That’s not the case. The law gives the appointment power to the governor. Certification is a ministerial act by which the secretary of state records the governor’s action. If a secretary of state refuses to certify an action, the certification can be compelled. Failure to certify cannot be used to block an otherwise valid and legal action by the governor.
December 31st, 2008 at 12:36 pm
Mvanburen,
Re:Yes, relatively new. I don’t get it.
Mr. Yglesias thinks that proper English orthography are outmoded Christianist concepts that reek of the patriarchy. Today’s hipsters don’t need to worry about orthography, don’t you know….we spell things the way that makes us feel good.
December 31st, 2008 at 12:38 pm
Although to be fair to Yglesias, spelling the “tch” sound with a ‘C’ is, I believe, the convention for Romanizing Serbian names.
December 31st, 2008 at 12:40 pm
Hector-
Fair enough. Thanks for the explanation.
December 31st, 2008 at 12:40 pm
Mr. Yglesias thinks that proper English orthography are outmoded Christianist concepts that reek of the patriarchy. Today’s hipsters don’t need to worry about orthography, don’t you know….we spell things the way that makes us feel good.
In other words, his spelling, grammar, and proofreading ability are about on a par with a retarded monkey that is high on crack.
December 31st, 2008 at 12:42 pm
Al whined… Democrats are running roughshod over the Constitution. How typical. Shredding the Constitution is exactly what I expect Democrat to do every time. The fact that there is a Supreme Court precedent directly is opposition apparently doesn’t matter to Democrats. This is, in fact, far worse than any supposed Bush Administration disregard for the Constitution – after all, there was no Supreme Court precedent directly saying anything with respect to wiretapping phone calls between the US and another country.
Shorter Al. “WAAAAAAAAAAAH!!!!!”
Interesting that a GOP apologist finds suspension of habeas and torture of an American citizen to be Constitutional, but is outraged over legal wrangling about a Senate appointment. Or the illegal use of private, magically disappearing e-mail accounts for White House business. Or illegal use of government facilities for promotion of a political party. Or…
December 31st, 2008 at 12:45 pm
Re Hogan’s comment “If you’ve quoted it correctly above, it doesn’t say “chief executive”; it says “executive.” Which includes the Secretary of State.”
————-
NO IT DOES NOT.
1) Amendment 17 says “THE executive”. Which I interpret to be the Governor and which the State Legislature of Illnois also agrees is the Governor.
From Illnois Code:
“(10 ILCS 5/25‑8) (from Ch. 46, par. 25‑8)
Sec. 25‑8. When a vacancy shall occur in the office of United States Senator from this state, the Governor shall make temporary appointment to fill such vacancy until the next election of representatives in Congress, at which time such vacancy shall be filled by election, and the senator so elected shall take office as soon thereafter as he shall receive his certificate of election.
(Source: Laws 1943, vol. 2, p. 1.)”
December 31st, 2008 at 12:47 pm
Of course, it used to be that state legislatures elected the Senators, and I suspect that the Governor appointment for vacant seats tendency comes from that period.
If the Illinois Secretary of State refuses to send along this appointment, exactly this point is likely to be in doubt – in other words, was this a properly executed appointment ? And the US Senate would get to rule on that.
December 31st, 2008 at 12:53 pm
1) Also, the US Senate does not get to decide if Blagojevich is Governor of Illnois — that is decided by the Laws of Illnois.
2) Illnois Law says Blagojevich is Governor until the following:
“(1) The death of the incumbent.
(2) His or her resignation.
(3) His or her becoming a person under legal
disability.
(4) His or her ceasing to be an inhabitant of the
State; or if the office is local, his or her ceasing to be an inhabitant of the district, county, town, or precinct for which he or she was elected; provided, that the provisions of this paragraph shall not apply to township officers whose township boundaries are changed in accordance with Section 10‑20 of the Township Code, to a township officer after disconnection as set forth in Section 15‑17 of the Township Code, nor to township or multi‑township assessors elected under Sections 2‑5 through 2‑15 of the Property Tax Code.
(5) His or her conviction of an infamous crime, or
of any offense involving a violation of official oath.
(6) His or her removal from office.
(7) His or her refusal or neglect to take his or her
oath of office, or to give or renew his or her official bond, or to deposit or file such oath or bond within the time prescribed by law.
(8) The decision of a competent tribunal declaring
his or her election void.
No elective office, except as herein otherwise provided, shall become vacant until the successor of the incumbent of such office has been appointed or elected, as the case may be, and qualified.
…
For purposes of this Section, a conviction for an offense that disqualifies the holder of an elective office from holding that office shall occur on the date of the return of a guilty verdict or, in the case of a trial by the court, the entry of a finding of guilt. ”
10 ILCS 5/25‑2) (from Ch. 46, par. 25‑2)
December 31st, 2008 at 1:19 pm
TKD@45 :
By whom ? By the Governor ? And how ? And how quickly ?
For this scheme to work, this appointment has to become reality quickly. Any delay means that it will likely to be too late, and it seems that there are lots of ways to delay this if the Secretary of State is opposed.
Now, Eugene Talmadge of Georgia would have known how to compel this – just send in the National Guard with submachine guns to take over the office. I am not sure that that would go over well…
December 31st, 2008 at 1:33 pm
Re Marshall’s comment “For this scheme to work, this appointment has to become reality quickly. Any delay means that it will likely to be too late, and it seems that there are lots of ways to delay this if the Secretary of State is opposed.”
—————
1) If you plot to deny the People of Illnois a Senator by two-faced , illegal footdragging, then how is that not worse than what Blagojevich is alleged to have done?
The Constitution is clear. Illnois Law is clear.
a) Does Illnois have a law allowing interim appointments to the US Senate by the Governor? Yes
b) Is Blagojevich the Governor? Yes
c) Is Blagojevich required by law to appoint a Senator when the position becomes vacant ? Yes
2) I would DEARLY love to see the text of the Resignation Letter Barack Obama sent to Blagojevich.
By Illnois Law, Obama’s letter to Blagojevich acknowledged that Blagojevich is the person who has the power and duty to appoint Obama’s successor.
By Illnois Law, Obama’s position is NOT supposed to become vacant until his successor has been appointed.
What I would especially like to see is what date did Obama give for when his resignation as US Senator would be effective.
December 31st, 2008 at 1:52 pm
Marshall@55:
I think this would be done by applying for a writ of mandamus (or the equivalent under Illinois law), which is a court order directing an official to carry out an act which is ministerial and non-discretionary. The person whose rights are being violated (presumably Burris) would have the ability to seek this remedy. Someone with more knowledge of Illinois law would have to say which court this would go to, and how quickly it would be acted on.
Some writers have said that if the Senate simply slows down consideration of the Burris appointment, Blagojevich is impeached and removed, and a new governor issues a new appointment, the Senate can treat the Burris appointment as moot, and seat the person appointed by the new governor. It’s far from clear that this is true. As long as a governor is legally empowered to take an action at the time he takes it, why would his subsequent impeachment and removal (or for that matter, death or resignation) cancel the legal effect of that action? As long as Burris has been validly appointed and is eligible for the office, his appointment fills the vacancy, so there would be no vacancy for the new governor to fill.
December 31st, 2008 at 2:06 pm
@28: That still seems like an incredibly dubious argument, since the appointment mechanism is laid out in the 17th amendment, and there’s absolutely nothing about the Senate “judging” the appointment.
Technically, the 17th amendment instituted popular elections for Senators and preserved the state legislatures’ discretion to adopt an appointment mechanism for vacancies. In any case, the 17th–it seems to me–did nothing to impair the Senate’s Article 1, Section 5 power to judge “Elections.” And when you consider that Article 1, Section 5 was drafted at a time when Senators were not chosen by popular election, it makes sense to read the word “Election” broadly–to mean the validity of the process of choosing a Senator, however made. As other commenters have noted, this appears to be a novel issue, so it isn’t clear how the Courts would rule (or if they would abstain). Nevertheless, I don’t think it’s quite so dubious to assert that the Senate has some gatekeeper role here.
December 31st, 2008 at 2:17 pm
Per the 20th Amendment, the Senate and House terms end at 3 January — and the term of the new President begins on 20 January. So my guess is that Obama gave 3 January as the effective date for his resignation as Senator. Which would let Blagojevich argue that Illnois law compels him to appoint Obama’s succcessor now.
Re the possibility of the Republicans WINNING an Illnois special election, this just in:
—————
Senator John Cornyn of Texas, the new leader of the National Republican Senatorial Committee, joined other Republicans in agreeing that Mr. Burris should not be seated. But Mr. Cornyn pressed for a special election, which would let Republicans compete for the seat rather than see an appointed Democrat fill it for the next two years.
“There is no other appropriate way for this process to move forward without the stench of corruption or political gamesmanship attached to it,” Mr. Cornyn said in a statement.
————
3) Also , this:
“Republicans are eager to create a special election, which would give them a shot at winning a Senate seat that had been in Democratic hands. They argue that neither Blagojevich nor Quinn, if he becomes governor, should be allowed to pick the new senator.
Democrats are divided. Some say a special election would shield the next senator from any suggestion of corruption, but others argue it would take months and cost tens of millions of dollars. Some also want to avoid any risk of an election loss.
The Illinois Republican Party produced a television ad saying Blagojevich had “embarrassed Illinois” and criticizing Quinn for saying he supports appointing a new senator instead of electing one.
“The people of Illinois deserve better than another political power grab,” says the ad, which was supposed to begin airing today.
Opponents of a special election say it would be too expensive. Officials estimate it could cost between $30 million and $50 million.”
http://www.rrstar.com/homepage/x776486616/Spokesman-Gov-might-sign-special-election-bill
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December 31st, 2008 at 2:24 pm
1) Several news reports say Blagojevich has gained a lot of goodwill among Illnois’s African-American leaders with this appointment.
2) If Reid blocks it, then Blagojevich could cut a deal with Illnois’s Republicans — they block him from being impeached and he signs a law allowing a special election for Obama’s replacement. It would be a huge propaganda victory –and a big shot in morale — if Obama’s replacement in the Senate was a Republican.
3) That little rat-faced fucker Blago may pull this off yet.
December 31st, 2008 at 2:36 pm
the Senate gets to decide whether a Senator is really 30, not 35.
Minimum age for the senate is 30, not 35. And there are at least two instances in which the Senate was called upon to address a newly-elected senator’s age: 28-year old John Eaton of Tennessee was seated in 1818, despite the age requirement, while 29-year-old Rush D. Holt, Sr. of West Virginia was required to wait until his 30th birthday in June 1935 before being sworn in as a senator.
December 31st, 2008 at 2:37 pm
Is Cornyn asking the Texas legislature to institute accelerated special elections for senators and prevent the governor from appointing replacements, Don? What about practically every other state in the union? You seem to believe the people are amazingly willing to accept Republican politicians’ supposed devotion to principles at face value.
December 31st, 2008 at 2:41 pm
Damn, how did he get on the ballot in the first place? Were people idiots in 1934, or did he lie about his age?
December 31st, 2008 at 2:49 pm
Re KCinDC’s comment “You seem to believe the people are amazingly willing to accept Republican politicians’ supposed devotion to principles at face value. ”
—————
Not at all. I know that Republicans are crooked, two-faced motherfuckers. It is Harry Reid who’s forgotten that.
He could accept a perfectly good Democratic Senator into the caucus. Instead, he’s going to risk having Obama’s replacement be a Republican — with a huge shot in the arm to Republican morale and a big roadblock to Democratic agendas being passed in the next four years.
Plus Blago’s price to the Republicans for allowing a special election is that they save his ass in the Illnois Legislature — which they can easily do. So the Democrats have a vengeful Governor spending the rest of his term of office figuring out he can screw them.
December 31st, 2008 at 2:57 pm
Granted I’m not in Illinois, but the Republican legislators making a deal with the corrupt governor to block his impeachment doesn’t seem like it would go over very well with anyone other than Republicans — and only the most partisan Republicans at that. To everyone else it would look like Republican corruption. How would that improve Republican prospects in Illinois?
December 31st, 2008 at 3:10 pm
Well, if Fitzpatrick caught you on tape making the deal, I would suppose it wouldn’t go over very well.
A few years ago, the Mayor of Philadelphia’s internal security staff found a bug in his office. Turned out the exposed bug had been installed by the FBI. Some people would call that a competent politican.
December 31st, 2008 at 4:04 pm
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December 31st, 2008 at 4:09 pm
As stupid as Illinois GOPers are, I can’t imagine they’d be as stupid as to cut a deal to keep the most unpopular governor in the history of unpopular governors (”Less popular than George W Bush… In Illinois!”). So national GOP wet dreams about picking up a senate seat notwithstanding, I doubt that’s the plan locally. Of course, they are pretty damn stupid.
December 31st, 2008 at 4:27 pm
Don, they don’t need to be caught on tape making the deal. Their votes to prevent Blagojevich’s impeachment would be public. Why on earth do you think voters wouldn’t tar and feather them?
December 31st, 2008 at 5:02 pm
The U.S. Senate has refused to seat 24 people in its history, so I don’t know how you can say it is ‘not permitted.’
December 31st, 2008 at 6:51 pm
Re: I agree that filling vacant elected seats with appointments is wrong
There’s a very good reason why seats should be filled– temporarily– by apointment. Should a large fraction of the Senate ever be wiped out by disaster or act of war, we won’t find ourselves ruled by either some random rump group of survivors, or by a president ruling by decree. We need some similar mechanism available for the House too.
January 1st, 2009 at 6:59 pm
Public office is not personal property
The powers granted to publc officials, including the power that IL gives to its governors to appoint Senators should one of IL’s seats become vacant between regular elections, are not personal perquisities that can be exercised by the offcie-holder without reference to the public purpose for which all such powers are granted. However much it may be true that the governor is left free of any oversight from any other agency to decide which replacement Senator would be best for IL for him to appoint, he is not free to reach his decision for private reasons, such as the receipt of a bribe. All sorts of other private reasons might be equally removed from, even adverse to, the interests of IL, but bribery suffers in comparison to these by being externally verifiable, as in this case. And if it can be proven, to whatever standard the Senate thinks reasonable to apply, that the governor did act from personal motives contrary to the official duty that coincides with his official power to make this appointment, then the Senate would have to set aside the result of this corrupt process. The case is no different than if there were credible evidence that a bribery scheme existed that might have involved enough voters to change the result of an election to its membership. It would be obliged to satisfy itself in both case, by whatever process seems reasonable, that the bribery scheme had not affected the result. I think that any appointment by Blago raises a suspicion that bribery affected the result sufficient to require some sort of investigation to prove the contrary before Burris is seated.
January 11th, 2009 at 7:17 pm
Burris sought the death penalty for an innocent man. Even with DNA evidence and a confession linking somebody else to the crime, Burris insisted on prosecuting the man because he thought it would help him win an election. Prosecutors resigned from the case because they thought they were sending an innocent person to his death. The man spent 11 years on death row before he was released.
Burris is morally unfit to serve. He’s scum just like Blago and nurse Ruttlen.
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