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Left/Right Consensus: Seat Burris:

In the National Journal's latest blogger poll, 56% of left-wing bloggers and 78% of right-wing bloggers believe the U.S. Senate should seat Roland Burris. I voted in the majority on this one. Based on Burris's record in Illinois, which ranges from mediocre to pernicious, I think he will be a terrible Senator, but I think that the Senate is constitutionally required to seat him. The fact that Gov. Blagojevich may have unsuccessfully attempted to sell the Senate seat to other people does not mean that the appointment of Burris was corrupt. Of course it would be better in this case, and in the case of other Senate vacancies, to have a prompt special election to fill the seat. An Illinois Senate delegation consisting of Dick Durbin and Roland Burris is a pathetic contrast with the kind of Senators that Illinois used to send the nation, such as the distinguished duo of Everett McKinley Dirksen (Rep.) and Paul Douglas (Dem.) in the early 1960s.

Related Posts (on one page):

  1. Left/Right Consensus: Seat Burris:
  2. Argument for Why the Senate May Decline To Seat Roland Burris:
Cornellian (mail):
The fact that Gov. Blagojevich may have unsuccessfully attempted to sell the Senate seat to other people does not mean that the appointment of Burris was corrupt.

How do you know the appointment was not corrupt? Given the other allegations against Blago, shouldn't there be a presumption that the appointment was corrupt, until demonstrated otherwise?
1.5.2009 3:31pm
loki13 (mail):
I think the more compelling argument which you have not addresssed is the following (allow me to use the analogy):

An election is held. Four individuals run. The election body corruptly disqualifies three of them right before the election, leaving one undisputed winner. That person, himsefl, did no wrong. However, he was elected through a tainted process. This is the type of "elections" and "returns" I believe the Senate can properly judge should they chose to.

In the same sense, the idea that there were other individuals who would be the Senator BUT FOR the corruption of the process opens the door for the Senate to judge (in the sense of a Senate trial) this appointment. Whether it is either politically wise or expedient for them to do so is a different question.
1.5.2009 3:35pm
PatHMV (mail) (www):
Your post suggests that you believe the Senate could Constitutionally refuse to seat Burris if the specific appointment were corrupt (i.e., if Burris paid for the appointment). What is the legal basis for that conclusion? Does that power stem from the Senate's general authority to judge election and qualification of its members?
1.5.2009 3:39pm
wyswyg:
"The fact that Gov. Blagojevich may have unsuccessfully attempted to sell the Senate seat to other people does not mean that the appointment of Burris was corrupt."

Presumes facts not in evidence. This is the whole reason for the controversy, surely.
1.5.2009 3:43pm
Chuck Kuecker (mail) (www):
Didn't the Democratic Party say a short while back they would NOT allow a Blago appointee to be seated?

Then there's the small matter of the Illinois Secretary of State Jesse White needing to sign off on the appointment - and he has stated he won't do it.

In light of Chicago politics and Blago in general, I would vote to keep Mr. Burris out - for now. Perhaps, after the Blago mess is sorted out, or if there's an 'honest' electrion in Illinois...hah...
1.5.2009 3:52pm
A Law Dawg:
Given the other allegations against Blago, shouldn't there be a presumption that the appointment was corrupt, until demonstrated otherwise?


Allegations are not the same as evidence, and in America we have a presumption of innocence until the trial is completed. And even if they are proven, they are not evidence that he committed this crime, only that he has a propensity to do so.

even if there are mountains of evidence that Blago tried to sell the seat, there's no evidence whatsoever (yet) that Burris tried to BUY the seat. Since Burris is the one in the seat, the focus should be on him.

I say all this in spite of my solid belief that Blago is guilty as sin on the prior attempts to sell.
1.5.2009 3:52pm
Blue:
Look, the situation stinks--but what would stink even worse is establishing a precedent for the Senate to refuse to seat someone basically because they do not like him.
1.5.2009 3:56pm
man from mars:
The Senate has the power not to seat a member who is the product of a corrupt Election. This power derives from the clear language of Article 1, Section 5, which gives the Senate to judge:
1. Elections;
2. Qualifications; and
3. Returns

of its members. See, e.g., Morgan v. United States (1986).

The Senate does not have the power not to seat a member who is the product of a corrupt Appointment.

An appointment is not an "Election" in the sense of the Constitution. Although the word "election" can just mean "choice," in the Constitution it has the usual meaning of a vote among a plurality of voters, and the language distinguishes between "elections" and "appointments."

An appointment is not a "Qualification." In Powell v. McCormack, the Supreme Court held that Qualification in this clause meant the same as the word in other contexts in the Constitution. A candidate selected through a corrupt appointment process is not thereby unqualified if he or she satisfies the constitutionally specified qualifications.

An appointment is not a "Return." A "Return" is a "Report" even using Amar's definition. The power to judge a report of an election does not include the power to judge the election itself. This is why the word "Elections" was needed in the clause. Similarly, the power to judge a report of an appointment does not include the power to judge the underlying appointment.

This point seems to cause some confusion. But it's clear from the language. If I judge a book report, I am not judging the book on which the report is done: I am determining if the report itself is accurate. If I judge a report of movie box office totals, I am assessing the accuracy of the reports, not the quality of the underlying movie. If I judge a scorekeeper in a baseball game, I am interested in whether the scorekeeper is accurately recording the called balls and strikes, not whether the actual calls are accurate.

The Senate is granted the specific power to judge a report, and so that power pertains to the report, not to the thing reported. That is why a separate grant of power, to judge Elections is needed in order to judge Elections (as opposed to reports of Elections).

I am speaking here of Constitutional law. Pragmatically, the Senate can easily block the Burris appointment by arguing its determination is non-justiciable under the political question doctrine, or by delaying final judicial review until the matter is moot. But if or when it does so, it is acting outside the bounds of its constitutional power.
1.5.2009 3:56pm
Jay Myers:
This is Illinois we're talking about. There are grounds to assume that every election there is corrupt. Does that mean that the Senate will never again seat a Senator from Illinois?
1.5.2009 3:59pm
Awesome-O:
In the National Journal's latest blogger poll, 56% of left-wing bloggers and 78% of right-wing bloggers believe the U.S. Senate should seat Roland Burris.

The only explanation for this is that we on the right are a bunch of mischievous bastards.
1.5.2009 4:03pm
RPT (mail):
Without defending B, isn't all of this based on a Fitzgerald press conference, the release of partial transcripts or recordings, no issued indictment, and so on? There are not yet any formal charges, or findings, thus all politics. They may be good politics or bad politics, but that's all we have. Right? As with Franken/Coleman, the D's should follow the law and procedures, seat Burris, and just deal with the political flak as it comes.
1.5.2009 4:06pm
Burt Likko (mail) (www):
Cornellian, the duty is on you or other opponents of seating Burris to prove that his appointment was corrupted.

Given that he is an experienced Illinois politician, and the guy who appointed him was Rod Blagojevich, that doesn't seem like a particularly heavy burden for you to carry. But so far, I haven't seen any evidence offered to that effect.
1.5.2009 4:13pm
Richard Aubrey (mail):
Burris. Yeah. Great guy. Burn the innocent for votes.
Terrific choice for Senator, as in he won't be out of place.
Then we've got nutcase comedian Franken with his smelly election victory.
Yeah. We conservatives think this is a great deal. Unfortunately, dems won't see the problem. Business as usual.
If the Senate can prove, or if it is proven elsewhere, that Burris actually bought the appointment, is the Senate allowed to refuse to seat him? It was not an election, after all. We wouldn't have a clue about it if it weren't for Fitz and his related investigation. Which brings up the uncomfortable question of what lay behind other appointments.
1.5.2009 4:13pm
bobfromfresno (mail):
Since the IL secretary of state has not signed the necessary appointment papers, Burris has not yet been appointed to anything.
1.5.2009 4:15pm
CDU (mail) (www):
An appointment is not an "Election" in the sense of the Constitution. Although the word "election" can just mean "choice," in the Constitution it has the usual meaning of a vote among a plurality of voters, and the language distinguishes between "elections" and "appointments."


I don't see how you can square this assertion with the fact that at the time Article 1, Section 5 was written senators were not elected by the voters, but by state legislators.
1.5.2009 4:21pm
Procedure_counts:
The only explanation for this is that we on the right are a bunch of mischievous bastards.
On the contrary, they are cleaver bastards thinking ahead. In 2 years, the Republicans will stand a better chance against Burris, rather than someone with 1) more statewide popularity and 2) less Blago-stink on his clothes. Even if Burris is not the nominee in 2 years, he will stink up the Dems primary.

Republicans are just sitting back, laughing at the Keystone Kops forming a circular firing squad... and taking plenty of notes for soundbites when the Republicans refuse to seat Al (spit) Franken.
1.5.2009 4:36pm
Kazinski:
Since by statute the Illinois Secretary of State "shall" certify the appointment, I don't think this is much of an issue. The act of certification is ministerial not discretionary.
1.5.2009 4:37pm
Alan K. Henderson (mail) (www):
If Illinois law allowed the guv to appoint citizens of other states, Blago could appoint Al Franken in return for Franken dropping his challenge against Norm Coleman's win. He might even win a Profiles in Courage Award for it :-)
1.5.2009 4:46pm
bobfromfresno (mail):

Since by statute the Illinois Secretary of State "shall" certify the appointment, I don't think this is much of an issue. The act of certification is ministerial not discretionary.

I don't know whether or not there are any grounds for the Sec'y of State's actions, but until the certification takes place, I don't think that Burris has the necessary credentials to enter the Senate.
1.5.2009 4:46pm
Al Maviva:
As with Franken/Coleman, the D's should follow the law

Right. Keep telling yourself that. Franken, Gregoire, Sanchez... mmmmm... you can smell the clean elections from here. I assume by "follow the law" you mean "use the law or some semblance of it to clothe their actions with a fig leaf of legitimacy." Funny how the vote totals only move in Al Franken's direction. Quite a coincidence, that, isn't it? God must love Democrats or something.
1.5.2009 4:54pm
Asher (mail):
An election is held. Four individuals run. The election body corruptly disqualifies three of them right before the election, leaving one undisputed winner. That person, himsefl, did no wrong. However, he was elected through a tainted process. This is the type of "elections" and "returns" I believe the Senate can properly judge should they chose to.

In the same sense, the idea that there were other individuals who would be the Senator BUT FOR the corruption of the process opens the door for the Senate to judge (in the sense of a Senate trial) this appointment. Whether it is either politically wise or expedient for them to do so is a different question.


Except, if Blago got impeached and Quinn was allowed to make his appointment, he, too, would almost undoubtedly not appoint one of the original candidates, ergo, there would still be other individuals who would be the Senator BUT FOR the corruption of the process.
1.5.2009 4:55pm
tsotha:
Based on Burris's record in Illinois, which ranges from mediocre to pernicious, I think he will be a terrible Senator...

If that were a criteria for seating Senators the chamber would be empty.
1.5.2009 4:57pm
tsotha:
Republicans are just sitting back, laughing at the Keystone Kops forming a circular firing squad... and taking plenty of notes for soundbites when the Republicans refuse to seat Al (spit) Franken.

I seriously doubt they'll do that. They threatened to filibuster all Senate business if Franken was seated before he was officially declared the winner in Minnesota, but when he is they'll back down. I saw rumors to the effect he would be declared the winner today, though I haven't seen any news on it yet.
1.5.2009 5:04pm
gasman (mail):

An appointment is not an "Election" in the sense of the Constitution. Although the word "election" can just mean "choice," in the Constitution it has the usual meaning of a vote among a plurality of voters, and the language distinguishes between "elections" and "appointments."


I don't see how you can square this assertion with the fact that at the time Article 1, Section 5 was written senators were not elected by the voters, but by state legislators.

Easily squared. A voter is one who casts votes. Thus, when those then constitutionally eligible to vote (state congressmen) held an election for senator, they were 'voters'.
1.5.2009 5:15pm
Roger Schlafly (www):
An election is held. Four individuals run. The election body corruptly disqualifies three of them right before the election, leaving one undisputed winner. That person, himself, did no wrong.
Following your analogy, it has been reported that Blago offered the appointment to Rep. Danny Davis, but he turned it down under pressure from Obama and Reid. If so, then it is Obama and Reid who have corrupted the process. Should Burris lose his seat because of improper tampering by Obama and Reid?
1.5.2009 5:24pm
ohwilleke:
A bare majority of left wing bloggers, and a majority of right wing bloggers with a quarter disagreeing, is not a consensus of any kind.

Consensus implies unanimity, or near unanimity, and as we all know, the legal system exists because intellectual minorities are often right.

"Bipartisan Majority Of Bloggers: Seat Burris" would be more accurate.
1.5.2009 5:43pm
BT:
"An Illinois Senate delegation consisting of Dick Durbin and Roland Burris is a pathetic contrast with the kind of Senators that Illinois used to send the nation, such as the distinguished duo of Everett McKinley Dirksen (Rep.) and Paul Douglas (Dem.) in the early 1960s."

Quit complaining. Those Senators reflected the values and temperament of the voters of Illinois at that time, that holds equally true for Durbin and Blogo, etc. today. Illinois is getting what it deserves. Nothing less. The sad part about it is that the R's here are such a joke that it won't make much of a difference in the long haul. There will be no long term damage to the D party here for any of this. After some bloviating it will be business as ususal. I love Illinois.
1.5.2009 5:43pm
Dave N (mail):
Loki wrote:
An election is held. Four individuals run. The election body corruptly disqualifies three of them right before the election, leaving one undisputed winner. That person, himsefl, did no wrong. However, he was elected through a tainted process.
My first thought is that describes Barack Obama's first State Senate victory. :-)

As for Burris, he should be seated unless there is evidence he did something wrong. That Blago is corrupt is not evidence that Burris also is (see Ford, Gerald, and Nixon, Richard). If Burris corruptly procured his seat, the Senate should promptly expel him.
1.5.2009 6:08pm
Bad (mail) (www):
"Then we've got nutcase comedian Franken with his smelly election victory."

If Coleman was ahead, Democrats would be saying the exact same thing. And it would be equally as tedious.
1.5.2009 6:32pm
KeithK (mail):

An election is held. Four individuals run. The election body corruptly disqualifies three of them right before the election, leaving one undisputed winner. That person, himsefl, did no wrong. However, he was elected through a tainted process. This is the type of "elections" and "returns" I believe the Senate can properly judge should they chose to.

In the same sense, the idea that there were other individuals who would be the Senator BUT FOR the corruption of the process opens the door for the Senate to judge (in the sense of a Senate trial) this appointment.


There is no formal "process" by which governors appoint replacement senators. There is no way to say who "would have been Senator" if not for alleged corruption. The governor is entitled to appoint any citizen of the state who meets the Constitutional requirements (30 years old, 9 years a US resident). The fact that the pundit and political class can identify other candidates who they think are more "qualified" or "worthy" doesn't make them so in any formal sense that should be subject to review.

Blago did exactly what I expected him to, giving a big middle finger to the political class that has been trying to run away from him from the moment Fitzgerald held his news conference. But he's still the governor (hasn't been impeached) and the legislature hasn't stripped his power of appointment. So the Senate ought to seat Burris. Personally, I'll just be sitting here watching the show.
1.5.2009 6:43pm
Mike 'Ralph' Smith:

Look, the situation stinks--but what would stink even worse is establishing a precedent for the Senate to refuse to seat someone basically because they do not like him.


That's the biggest concern for me. If the Blago appointment is tainted even though there is no evidence of any Burris culpability, then there is probably enough of a whiff of taint in every appointment for the Senate to reject the appointee. I'd bet that most governors have had some allegation of impropriety lodged against him or her at one time or another. This is a bad road to start down, IMHO.
1.5.2009 6:44pm
Mike 'Ralph' Smith:

An appointment is not an "Election" in the sense of the Constitution. Although the word "election" can just mean "choice," in the Constitution it has the usual meaning of a vote among a plurality of voters, and the language distinguishes between "elections" and "appointments."


I'm willing to be convinced, but it would help if you could present some basis for your opinion. I'm looking for anything--opinions expressed by the Founding Fathers, court precedents, 18th century legal dictionaries, etc. Perhaps even something as flimsy as a policy argument as to why reading "elections" narrowly makes sense. Absent any evidence to the contrary, given your admission that the meaning of the word "election" encompasses any choice (such as an appointment), and given the lack of any good reason the Founders would want to give the Senate power to judge corruption in voting results but not corruption in gubernatorial appointments, the most common sense reading seems to be a broad one to include any choice of selection.
1.5.2009 6:54pm
Kirk:
Jay Myers,"
Does that mean that the Senate will never again seat a Senator from Illinois?
I'm searching for the downside here...
1.5.2009 8:06pm
Seamus (mail):

How do you know the appointment was not corrupt? Given the other allegations against Blago, shouldn't there be a presumption that the appointment was corrupt, until demonstrated otherwise?



Nope.

Gee, that was easy. Next question?
1.5.2009 8:07pm
Richard Aubrey (mail):
Bad.
Coleman isn't a comedian. He does have political experience. He's not a nutcase, and he does come from MN.
Not an equivalence.
And the deciding votes, had he won, would not have been discovered in old lunchboxes.
1.5.2009 8:43pm
tsotha:
Those Senators reflected the values and temperament of the voters of Illinois at that time, that holds equally true for Durbin and Blogo, etc. today. Illinois is getting what it deserves. Nothing less.

The problem is the rest of us are also getting what Illinois deserves. Sigh. I suppose thats true with Chris Dodd and was true with Ted Stevens as well. If only there were some form of government where provinces elected their own governments and the central government was limited to things like raising armies regulating trade between the provinces. Ah, but that's crazy talk.
1.5.2009 8:48pm
tsotha:
Coleman isn't a comedian.

Neither is Franken.
1.5.2009 8:49pm
DeezRightWingNutz:
Jesus Christ, how many times have people, even (especially?) lawyers, mistaken said that a the standard "innocent until proven guilty" applies in contexts other than a court of law.
1.5.2009 9:11pm
Richard Aubrey (mail):
tsotha

True, true. Coleman, now that I think about it, may be disqualified on account of an absence of tax troubles.
1.5.2009 9:24pm
first history:
. . . the duty is on you or other opponents of seating Burris to prove that his appointment was corrupted.

Which is why I believe that Burris will be given an office, maybe even a staff, but he won't be allowed to vote while the Senate Rules Committee slow walks its investigation into the circumstances of his appointment. This should give the Illinois Legislature plenty of time to impeach and remove Blago, and have the Lt. Governor appoint a competing candidate.

Burris' senatorial career is a dead before it began, he just doesn't know it yet.
1.5.2009 11:27pm
RPT (mail):
"Al-Maliva:

As with Franken/Coleman, the D's should follow the law

Right. Keep telling yourself that. Franken, Gregoire, Sanchez... mmmmm... you can smell the clean elections from here. I assume by "follow the law" you mean "use the law or some semblance of it to clothe their actions with a fig leaf of legitimacy." Funny how the vote totals only move in Al Franken's direction. Quite a coincidence, that, isn't it? God must love Democrats or something."

Unless you have some kind of first hand knowledge of what happened, which is superior to the Minnesotans on the ground, all you are doing is complaining about a result you don't like in a contest that was closely contested and highly scrutinized. Gregoire's was the same. I don't recognize the Sanchez reference. If Coleman the incumbent couldn't get the votes over a former comedian, he doesn't deserve to win. In any event, my preference over Franken would have been any member of the Firesign theatre.
1.6.2009 12:35am
Dave N (mail):
RPT,

The Sanchez refernce was to Loretta Sanchez's 1996 victory over Bob Dornan.
1.6.2009 1:38am
man from mars:

An appointment is not an "Election" in the sense of the Constitution. Although the word "election" can just mean "choice," in the Constitution it has the usual meaning of a vote among a plurality of voters, and the language distinguishes between "elections" and "appointments."



I'm willing to be convinced, but it would help if you could present some basis for your opinion.


I do not think there is a need to make this overly complex. I will give three very simple arguments that an "Appointment" is not an "Election": from common usage, from the Amar piece in Slate, and from the text of the Constitution.

1. Common usage: Everyone understand the difference between "elected judges" and "appointed judges"; between "elected politicians" and "unelected bureaucrats". If an "appointment" were an "election" then none of these cliches would make sense.

2. Amar. The most visible advocate of the position that the Senate may legally refuse to seat Burris is Akhil Amar, whose Slate article here http://www.slate.com/id/2207754/ argued that the right to judge "Returns" encompassed the right to judge appointments.

But even Amar, who customarily relies on out-of-context definitions to support his politics, does not dare make the argument that an "Appointment" is an "Election." Instead, Amar recognizes, quite correctly, that an Appointment is not an Election - indeed is antithetical to one. Amar says "what is true of elected Senators is equally true of appointed Senators." Had Amar believed an "Appointment" was an "Election" then this statement of his would not have made sense. Throughout his piece, Amar distinguishes between an "Election" and a different, disjoint, thing called an "Appointment" which of course is how everyone thinks of it.

3. Constitutional context. Finally, the context of the Constitution itself uses the word Election in ways that are inconsistent with an "Appointment" being included: For example "shall issue Writs of Election" in art 1. Sec. 2; "first Election" in art 1. Sec. 3; "Times, Places and Manner of holding Elections" in art. 1 Sec. 4; "the right to vote at any election" in amendment 14 sec 2; "State shall issue writs of election" in 17th amendment (which is then followed by a distinct procedure for "appointments") and so on.

In conclusion, although the argument that an "Election" is a "Choice" and an "Appointment" is also a "Choice" therefore implies an "Appointment" is an "Election" is lexically appealing, it is a usage so remote from ordinary and from the contextual usage of the term that I do not think it will pass the straight-face test, were the Senate to try and rely on it.

Finally, you asked for policy arguments supporting my position. I am afraid I will not give any in the customary sense. The only policy argument I will give is that if the Senate can get away with redefining "Appointment" to mean "Election", then the textual bonds the Constitution uses to restrain governmental power would have been severely weakened if not cut entirely.
1.6.2009 2:29am
pluribus:
A Law Dawg:

Allegations are not the same as evidence, and in America we have a presumption of innocence until the trial is completed.

This is a very common misconception, to be expected on TV news but not on a serious legal blog. A person charged with a crime is presumed to be innocent in the criminal proceedings until the contrary is proven. The presumption does not apply outside of criminal proceedings. It does not apply in political proceedings, such as a proceeding to judge the credentials of a man or woman who claims to be entitled to a seat in the United States Senate. It certainly does not apply in everyday proceedings in real life. Would you entrust your life savings to Bernard Madoff for investment, arguing that he is presumed to be innocent of fraud charges? Or would you take heed of the widespread allegations against him, and the corroborating testimony of many victims, and conclude that he is not a man to be trusted with your money?
1.6.2009 7:43am
pluribus:
A Law Dawg:

I say all this in spite of my solid belief that Blago is guilty as sin on the prior attempts to sell.

What happened to the "presumption of innocence?" Don't you think you should aim for at least a modicum of consistency in your arguments?
1.6.2009 7:46am
pluribus:
first history:

Which is why I believe that Burris will be given an office, maybe even a staff, but he won't be allowed to vote while the Senate Rules Committee slow walks its investigation into the circumstances of his appointment. This should give the Illinois Legislature plenty of time to impeach and remove Blago, and have the Lt. Governor appoint a competing candidate.

Devoutly to be hoped for, but if Burris's appointment is valid, the new governor can't make an appointment, because there will be no vacancy, a necessary precondition for an appointment. You can't sell a Senate seat twice, even in Illinois.
1.6.2009 7:52am
pluribus:
Roger Schlafly:

Should Burris lose his seat because of improper tampering by Obama and Reid?

No, nor should he lose it because of improper tampering by McCain and McConnell, or even Brad Pitt and Jennifer Anniston. Counterfactual nonsense like this contributes nothing to this discussion.
1.6.2009 8:01am
pluribus:
KeithK:

The governor is entitled to appoint any citizen of the state who meets the Constitutional requirements (30 years old, 9 years a US resident).

Would you also argue that the governor is entitled to appoint any citizen of the state who meets the Constitutionl requirements and pays the highest bribe? As a wise man once said, circumstances alter cases.
1.6.2009 8:06am
FantasiaWHT:
re: presumption of innocence.

Even criminally, unproven crimes can be used against someone - especially in sentencing for dropped-but-read-in charges.
1.6.2009 8:59am
DiverDan (mail):

How do you know the appointment was not corrupt? Given the other allegations against Blago, shouldn't there be a presumption that the appointment was corrupt, until demonstrated otherwise?


So then, Cornellian, you must believe that in any criminal trial in which the Defendant has previously been convicted of a different crime, (a) the prior conviction ought to be admitted as evidence of guilt of the new charge; and (b) the prior conviction eliminates the presumption of innocence and replaces it with a presumption of guilt. Interesting.
1.6.2009 9:25am
switch (mail):
To those who argue that the appointment is not valid until the Secretary of State validates it: If this argument were to hold, would that mean than any SoS could block the election of anyone by simply refusing to validate? For example, could a Republican SoS block all Democratic Senators, Representatives, and Electors. Would a specific reason be necessary? or just that the SoS did not particularly like the process by which the Dems were elected or that the SoS suspected something was wrong with the process, that it was "tainted?" or that the SoS suspected the sanity of the candidates or that for the public good of the state the SoS was not certifying these "radical" candiadates. Is this a dangerous precedent? SoS could turn into one the more powerful offices in the country (and very susceptible to bribes. :-)
1.6.2009 10:02am
pluribus:
switch:

To those who argue that the appointment is not valid until the Secretary of State validates it: If this argument were to hold, would that mean than any SoS could block the election of anyone by simply refusing to validate? . . . Is this a dangerous precedent? SoS could turn into one the more powerful offices in the country (and very susceptible to bribes. :-)

Do you stay awake at night worrying about the growing "problem" posed by secretaries of state who refuse to "certify" (not "validate") senatorial appointments? Do you believe this "problem" is getting out of hand? Other than Jesse White in Illinois, have you heard of any secretaries of state who have refused to certify senatorial appointments? Do you know of any states other than Illinois in which the governor has been arrested on suspicion of soliciting bribes to appoint senators to vacant seats?

I presume your answers to all of the above questions would be no. If I am correct, I urge you to relax. This "problem" is not eating away at the democratic fabric. Illinois is a special case. Jesse White's refusal to certify Blagojevich's appointment of Burris is a special case, thought to be justified by many observers.
1.6.2009 10:52am
Mike 'Ralph' Smith:
@ Man from Mars

Thanks for your argument in support of your position.

1. Common usage: You focus on common usage of the term election as used today. We all know that the meaning and usage of words evolve over time. The relevant inquiry is what did the term mean when the constitution was written.

2. Amar: You'd do better to drop this part. First, this is an appeal to authority, a classic logical fallacy. Second, Amar is hardly authoritive on the issue. Third, he doesn't even address the question; you simply infer his position from his argument about returns.

3. Constitutional context: This is your best argument IMHO. I read the cited constitutional sections and it does appear to me most likely that the word "elections" did not mean gubernatorial appointments. It is clear that elections does include the state legislature selecting a senator. And, it hardly makes sense for the Senate to have the authority to judge elections by the people and by state legislatures but not the much rarer and temporary appointment by the executive. An oversight on the part of the Framers? But, I understand your position that it is what it is. I'd still like to know more about common usage in the 18th century and any opinions expressed by Founding Fathers. I'm also much more curious about what was meant by including the the word "returns" in the section making each house the judge of the returns of its own members. It seems superfluous if narrowly interpreted to mean only judging the results reported in an electon since that would already come under the power to judge elections.
1.6.2009 11:15am
Bill Harshaw (mail) (www):
Prof. Johnson cites Vare as a precedent for not seating Burris.
1.6.2009 11:16am
A Law Dawg:
Allegations are not the same as evidence, and in America we have a presumption of innocence until the trial is completed.

This is a very common misconception, to be expected on TV news but not on a serious legal blog. A person charged with a crime is presumed to be innocent in the criminal proceedings until the contrary is proven. The presumption does not apply outside of criminal proceedings. It does not apply in political proceedings, such as a proceeding to judge the credentials of a man or woman who claims to be entitled to a seat in the United States Senate.


Thanks for the 9th grade civics lesson. Let's return to the facts: the Senate is denying Burris (and the people of Illinois) a Senate seat based on unproven allegations, not subjected to cross-examination, alleging bad conduct OF A THIRD PARTY. Can you name the first piece of evidence suggesting that Burris attempted to buy his seat? Even one? Don't you think that denying a state half their representation in the Senate should be founded on *proven* crimes?
1.6.2009 12:54pm
pluribus:
Hi, Law Dawg:

Did you skip the ninth grade? Changing the subject in the middle of a discussion isn't OK, even in ninth grade civics. So you have given up on the presumption of innocence and now are arguing "the facts." Good, this has been done at some length here. No, the Senate isn't denying the people of Illinois a Senate seat. They are examining the purported appointment of a would-be senator by a governor who, while tape recorders were running, announced that he expected something valuable in return for this very appointment. In other words, he solicited bribes for appointing a senator to the very seat to which he has just "appointed" Burris. See the connection? Does this justify at least a committee investigation? Like the investigation of Vare of Pennsylvania in the 1920's, this might take--let's see--about two years. And whatever the end results of this investigation, the people of Illinois will in the mean time be spared the dishonor of having a senator who got his seat from a bribe-soliciting governor.
1.6.2009 1:13pm
Bo:
How many states do have a better Senate delegation now than in the 1960s? Probably not many, if any at all...
1.6.2009 1:18pm
A Law Dawg:
Pluribus,

I completely agree that the Senate, the Illinois Legislature, and the Chicago dogcatcher should conduct all relevant investigations into the matter.

That said, there is no evidence -- none -- that Burris attempted to buy his Senate seat. When a governor is corrupt, you impeach him and every person he appointed corruptly. You do not fire the people he hired cleanly. Should we also fire Blago's groundskeeping staff?
1.6.2009 1:22pm
pluribus:
A Law Dawg:

Should we also fire Blago's groundskeeping staff?

If they show up in Washington claiming that Blagojevich appointed them to the Senate, and if they can't produce a certificate signed by Secretary of State Jesse White, bar them from the Senate floor. If they bring a bunch of lawyers with them, tell them a committee will look into the matter. Let's hope they (and Burris) all bought round trip tickets when they left Illinois.
1.6.2009 1:40pm
wfjag:

Based on Burris's record in Illinois, which ranges from mediocre to pernicious, I think he will be a terrible Senator

Even if true -- and as I know nothing about his record, so I don't have an opinion on his ability -- that would still likely rank him better than Sen. Reed, who refused to seat him, and is at least as good as Sen. Durbin. Is there irony here?

Interesting how the press is spinning this story. If Reed was a Republican, you wonder if anyone in the press would be remembering his recent "don't have to smell them anymore" comment?
1.6.2009 1:43pm
A Law Dawg:
if they can't produce a certificate signed by Secretary of State Jesse White, bar them from the Senate floor.


Fair enough, but I suspect the same thing would have occurred if White had given a certificate. That said, White's denial of the certification is even more improper (or at least I think so -- is there any reason why mandamus wouldn't lie for this? Surely this is not left to the SoS's discretion).

However I'll concede that this was utterly foreseeable when Burris accepted the appointment, so he certainly shouldn't act shocked.
1.6.2009 1:47pm
man from mars:

Prof. Johnson cites Vare as a precedent for not seating Burris.


Vare has no applicability. In Vare, the Senate relied on its Art. 1, Sec. 5 power to "Judge the Elections" to refuse to recognize an allegedly corrupt election.

Johnson argues that Vare applies here because the precedent should be "extended to appointment."

Unfortunately for Johnson's argument, the precedent cannot be extended to appointment because there is no power to "Judge Appointments" granted to the Senate. There is only a power to "Judge Elections."

(Again, Johnson's argument is invalid as a matter of law - as a matter of pragmatism the Senate can do and will do whatever it wants and is not subject to practicable judicial review.)
1.6.2009 3:44pm
pluribus:
(link)man from mars:


Prof. Johnson cites Vare as a precedent for not seating Burris. . . . Johnson's argument is invalid as a matter of law. . . .

I love it when arguments on disputed points are stated as holdings. To what august tribunal may we attribute your pontifical opinion? Or is it adequate merely to cite this post?
1.6.2009 4:22pm

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