Balgojevich Makes Senate Pick, But Will Burris Take the Oath?

225px-rwbphotoIllinois Gov. Rod Blagojevich has defied his critics and selected Roland Burris to replace Barack Obama. There is now speculation that the Secretary of State will not certify the appointment or that the Senate will use its inherent powers to block Burris. I just finished an interview with CBS stating that I believe both efforts would be an abuse of power. As the sitting governor of Illinois, Blagojevich is entitled to make this appointment.

Burris, 71, also a Democrat, served Illinois as state comptroller and later as attorney general.

In a statement released Tuesday, Senate Majority Leader Harry Reid, D-Nevada, said it was “truly regrettable that … Gov. Blagojevich would take the imprudent step of appointing someone to the United States Senate who would serve under a shadow and be plagued by questions of impropriety. We again urge Gov. Blagojevich to not make this appointment. It is unfair to Mr. Burris, it is unfair to the people of Illinois and it will ultimately not stand. The governor must put the interests of the people of Illinois and all Americans first by stepping aside now and letting his successor appoint someone who we will seat.”

The suggestion that the Senate might block the appointment is disturbing. The rarely used power to refuse to seat a member is confined to true election controversies where votes were not counted or elections were unfair. There is nothing illegitimate about this appointment. Regardless of how members may feel about Blagojevich, he is the unimpeached, unconvicted governor of Illinois. There is no allegations that Burris purchased this seat. Indeed, it would suicidal for Blagojevich to engage in such a quid pro quo in the face of a federal indictment.

Some have pointed to the case of Theodore Bilbo as an example of the Senate barring a controversial members. It would be ironic if Burris (an african american politician) where to be painted with the same brush as Bilbo, a vile racist and bigot. Burris is no Bilbo and this is not a good case of precedent for his denial. Bilbo was on his third term when there was the fight over his credentials. He was a vile racist who was accused of inciting violence to keep blacks from voting. I consider that to be a legitimate election controversy. There is nothing illegitimate about this appointment; there is no cognizable claim that Burris is not properly a member of the Senate. By the way, the problem is the Bilbo fight is that other Southern senators could have been accused of benefiting from suppression tactics of that kind. Bilbo ultimately died of cancer before the matter was resolved.

A more likely move would be to allow Burris to be sworn in while calling for an investigation to save face for the Democrats.

The same is true with the suggested refusal of the Secretary of State Jesse White to certify the appoint. Such an act would be based on the Secretary’s assumption of corruption. Absent impeachment or a criminal conviction, it is hard to see the authority for such an obstructionist position.

Burris is the next and legitimate senator from Illinois because he was appointed by the current and legitimate governor of Illinois. The rest is political posturing in my view.

The move may have a marginal benefit legally for Blagojevich. At his trial, he will be able to show that Burris was in the running from the start and ultimately did receive the seat without any allegation of corruption. This may strengthen the defense that all politicians explore how the use of political power will benefit them. Bill Clinton pardoned his own brother and a series of campaign contributors. In this conspiracy, Blagojevich will be able to show it was just a type of political trash talk. It will ultimately depend on those tapes and there may be some highly damaging parts since Fitzgerald seems eager to have legislators listen to them.

For the latest on the story, click here.

40 thoughts on “Balgojevich Makes Senate Pick, But Will Burris Take the Oath?”

  1. I have been musing about what if he had appointed one of the most prominent republicans in the state. Wouldn’t that be a kick in the head!

  2. What a dangerous dangerous, potentially destabilizing precedent it would set if Burris was seated because he was Black.

    I think it would be a horrible start to the Obama era and one where historians could look back and wonder what could’ve been if only the Senate hadn’t bowed to racism and political extortion.

  3. What a dangerous dangerous, potentially destabilizing precedent it would set if Burris was not seated because someone, somewhere was “suspicious”, that he “might be” involved in something untoward.

    Can you imagine any Senator having to defend against an unsubstantiated charge of “suspicion” before being seated? The Senate would grind to a halt. Worse yet would be if we start examining burial plots in order to ascertain if they are ostentatious and thereby indicative of a lack of integrity that would call into question a person’s fitness to serve in the Senate.

    I think it would be a horrible start to the Obama era and one where historians could look back and wonder what could’ve been if only Mr. Burris had been seated.

  4. White would NOT be overstepping his authority one bit by refusing to certify Burris’ appointment. He has every right not to sign that piece of paper for any reason that chooses. The real question is what does White’s lack of certification mean for Burris. It is completely unclear whether or not White’s signature is even legally necessary – unless I’ve been misreading the available data.

  5. I believe Prof. Turley’s right about Gov. Balgojevich’s motivations for this appointment; it may buttress his defense to the criminal charges. However, I disagree with Sen. Reid’s position, as well as with his logic. The Senate is not intended to be a private club whose prospective members are subject to being blackballed if they do not satisfy the preferred club criteria. Article I, Section 3 of the Constitution prescribes the eligibility requirements, which have been met in this instance. The Seventeenth Amendment provides for the popular election of senators and also authorizes a state’s executive (if authorized by that state’s legislature) to appoint persons to complete unexpired senate terms. That is precisely what has occurred in this instance.

    The authority of the Senate under Article I, Section 5 to judge the “elections, returns and qualifications” of its members must be understood within its constitutional confines. Gov. Balgojevich remains governor of Illinois and retains the authority he exercised in the appointment of Roland Burris. Therefore, the Senate cannot legitimately question the appointment under the “elections and returns” language. With respect to the issue of qualifications, the Supreme Court made it clear in Powell v. McCormack, 395 U.S. 486 (1969) that Congress is precluded from imposing “qualifications” beyond those expressly described in the Constitution. If the people of Illinois determine that the power to appoint should be deemed suspended when a governor is under indictment or has been formally charged with a crime, the legislature of that state can presumably enact that change. In the meantime, the Senate lacks any legal basis to refuse to seat Mr. Burris.

    I also do not believe that the example of Theodore Bilbo provides any guidance whatsoever on the issue. That he was grossly racist, corrupt and a national disgrace is certainly true, but he was apparently popular enough with the Mississippi electorate. Moreover, the motion to prevent his being seated was actually tabled due to Sen. Bilbo’s illness. He died without a final decision having been made and without the inevitable judicial review which would have come on the heels of a vote to keep him from assuming his position in the Senate.

    Sen. Reid’s lack of leadership ability is once again on display. He failed to prevent Sen. Lieberman from retaining his leadership positions in the Senate, something which senate Democrats had the ability and ample justification to accomplish. Now he intends to prevent a duly appointed senator from taking his seat, something which the Senate cannot do. As a lifelong Democrat excited over the prospects of an Obama presidency, would it be too much to ask for new majority leaders in Congress?

  6. I’d like to expand further on my earlier comment since it was made as I was going out the door for a medical appointment. This is being done not because of an overweening ego, but because this whole affair has disturbed and offended my sense of justice since its inception.

    First we have the fact that Governor Blagojevich has has been defamed based upon phone conversations (possibly abridged) released by a prosecutor. I knew nothing about the man until the media circus began. While it seems on the surface that he is corrupt based on supposition and innuendo, is he really the most corrupt seated governor in light of current GOP governors Davis, Barbour, Sanford, et. al.? Jeb Bush too, was not a paragon of virtue and yet no one looked into his many scandals while in office. In comparison we have had Eliot Spitzer forced to resign over a possible violation of the Mann act. The Mann Act was an abomination from its’ outset and indeed has been many years dormant in its’ inanity. Spitzer was a hubristic fool in his actions, but truthfully I think he was more of a fool for resigning. We had Don Siegelman, ridiculed and labeled as corrupt, sent to jail in fact, for what we now know to be political vengeance against a Democrat.

    The MSM, has been totally gutless in the face of rampant GOP corruption, obfuscation and criminal deception. Yet they gleefully will bring opprobrium to bear on any Democrat charged in a like manner. Even Ms. Maddow, whom I greatly respect, refers to Blagojevich as “Governor F Bomb.” The MSM uses the Governor’s crude language, used privately, as a further indictment of him, while we all know that the use of such language in private is the widespread norm, rather than the exception. There has been totally no respect for “presumption of innocence.” This is pathetic since this “presumption” is an absolute necessity for any viable system of justice (sorry Code Napolean) and certainly for ours.

    While the released tapes appear damning, I would much prefer to wait for the full transcript to provide full context and help adjudge the Governor’s criminality of behavior. Based on what could possibly be released in the future I could envision an expansion of evidence that could prove exculpatory. If I can, than I am sure the many Attorneys who frequent this site could come up with many more scenarios that would provide a theory of innocence, despite the seemingly damning, if abridged tapes thus far released. If then as I believe we are prematurely rushing to judgment on the Governor, then he is perfectly within his rights to not resign and to perform his constitutional duties. In fact, from the standpoint of his own defense, his not appointing a Senator could almost be viewed as an admission of guilt.

    Next we have Prosecutor Fitzgerald. I am aware that the MSM has deemed this man to be “beyond reproach.” I do not know what his reputation is in the legal community, but even granting that he is likewise “beyond reproach” within the legal community, we do have “The Plame Affair” by which to judged his actions. He was appointed (I believe) by the Bush Administration itself. He spent years on the case, supposedly building his prosecution, but also “coincidentally” defusing the immediacy of the whole affair as the MSM continued in its never ending search for novelty over substance. In the end, after much “sturm und drang” he managed to only prosecute Liddy on reduced charges and forgot about the clear trail leading to Rove, Arrington, Cheney and possibly Bush. To me at least, it seems that his actions did more to contain the damage, rather than uproot the guilty. In that sense he was a perfect tool for the Bush Administration’s cover up.

    We now have Mr. Fitzgerald releasing this “bombshell” exactly at the time of Barack Obama’s ascendancy and directly at the point he was releasing the details of his cabinet. This had the effect of the MSM ignoring the important appointments in favor of a media “feeding frenzy.” I am also naturally highly suspicious of any prosecutor who tries his case in the media, rather than in court. To me every time, in this case prior to indictment, a prosecutor makes such a maneuver it bespeaks a weaker case rather than the strong one that is claimed. I’m am not sure that in the end Mr. Fitzgerald is acting out of a thirst for justice, or rather for his own self interests whatever they may be.

    Finally, we have the Democrat’s behavior in all of this. For Mr. Obama, this is purely smart politics, so I can accept his position. Contrary to many, I want a President who is adept politically, as all the great President’s have been. Mr. Reid and the Democratic Senators are a different matter. Their immediate call for Governor Blagojevich to resign was not only premature, it exposed a lack of knowledge of our legal system and/or a craven cowardice. That they further intimated that they would not seat any Senator that he appointed was an outrage in that there is no indictment, no trial and no proof of guilt submitted. Blagojevich is the legal governor. If after a trial and a conviction they see proof that this was an untoward appointment, then they could remove his appointed Senator. In this respect I thank Ab2kgj for referencing the case of Adam Clayton Powell. Representative Powell was a great man, who unfortunately was an outspoken black man at a time when most of congress deemed this to be “uppity.” He truly spoke truth to power and his persecution in Congress was another unfortunate example of our country’s racist history. It was especially ironic considering the many thieves and liars that sat in judgment of him, especially those from southern climes.

    Please forgive me for this overlong rant but I think it’s obvious that I am disturbed by this case and the Professors post gives me the opportunity to speak out. On a lighter note I wish all of you here the happiest and healthiest of New Years, with the hope that we will have many, many more to share.

  7. In response to Jarod’s earlier comment, I do not know what the proposed Australian ban on topless bathing has to do with the Illinois senate seat, but I feel compelled to observe that while the sight of a topless female at the beach may raise a number of things among men, ire is not one of them.

  8. Jonathan,

    What would be your analysis of this from Harry Reid’s lawyer:

    In response to those who are asking how this is different from Powell v. McCormack, in which supreme court said House could not refuse to seat a member based on his alleged corruption and said only qualifications to be considered are those listed in the Constitution:

    [W]e are not making a judgment about qualifications of appointee, but about whether appointment itself is tainted by fraud, which we believe we are entitled to do under Art. 1 s. 5.

    This is like judging the integrity of an election, free from fraud or corruption. It’s the process that led to the [appointment], not the appointee’s fitness.

    A broad definition of “election” could suffice???

  9. Jill 1, December 31, 2008 at 10:23 am

    “The thing I can’t figure out is why this extremely corrupt group of senators got religion on this issue. There’s so many times they should have been worried about corruption and bad actions, why this one”

    That one is one that was puzzling me too. When it looked like Ted Stevens was going to win his reelection no one in the Senate leadership seemed to indicate they planned on not seating him. In fact the talk seemed to the contrary. It seemed like had he won he would have been given his seat. Some Senate members made some grumblings but the leadership seemed to be fine with a convicted felon returning to the senate. So yes, it does seem odd that they’d be so ready to refuse to seat Burris over corruption accusations against the governor seating him.

    Like I said I think it stems back to the nature of the suspected offense being directly related to the appointment, but still it is noteworthy that they didn’t seem to have a problem seating Ted Stevens.

  10. mespo,

    I don’t understand your phrase about the middle. Sorry, I’m slow this A.M. I think Mike and JT are correct. I also think everyone’s comments on extreme corruption are completely accurate. I also heard the comment about “lynching” which I felt was over the top and disgusting. The thing I can’t figure out is why this extremely corrupt group of senators got religion on this issue. There’s so many times they should have been worried about corruption and bad actions, why this one? Refusing to seat is also in line with this group’s willingness to ignore the law and I don’t think they should be encouraged in that direction. I worry about the senate claiming one more exemption from the rule of law more than I worry about seating this guy.


    I’m glad you brought up Fitzgerald. I don’t think he took that investigation nearly far enough either.

  11. Mike Spindell:

    I’d like to agree with you and JT, and from a legal perspective you both are correct. It is simply that acting in accord with the law is the bare minimum standard of conduct not its zenith. I hold our leaders to a position somewhere closer to the middle.

  12. I live in Illinois. I lived in Chicago for 10 years. Unfortunately I have found that in Chicago, it is the prevailing opinion among voters that a little corruption is a good thing. That attitude has allowed the Chicago political machine to become so corrupt that in is almost impossible to find a truly honest civic leader. The people of Illinois are complicit with the crimes of it’s leaders. Until we refuse to have anything to do with dishonesty at any level, we will continue to play out stories like this over and over again.

  13. I pretty much agree with Professor Turley, but here’s my reasoning.

    1. Blago has not been indicted except by the playing of the tape.

    2. He is the current legal Governor, despite calls for his removal.

    3. Mr. Fitzgerald proved in the Libby case that he takes a long time with his cases.

    4. Illinois would not have full Senate representation until the case is settled, which with Fitzgerald could take at least a year.

    5. The Illinois Legislature does not appear that it will impeach Blago anytime soon and they have no evidence other than Fitzgerald’s tape anyway.

    6. Despite econiums from the MSM, in my opinion Fitzgerald’s handling of the Plame case did not prove non-partisanship. In fact he dragged it out and in the end focused only on Libby, when we know there were higher ups involved. his actions may be political.

    7. While the release of the tapes seems damning, their release was in fact a typical prosecutorial tactic of pre-trying cases and I think was irresponsible failing an indictment being issued.

    8. One is still innocent until proven guilty in this country despite the MSM’s obvious presumption of blago’s guilt due to tape release.

    9. In these times Illinois can not afford to have only one Senator for perhaps more than a year.

  14. Mespo and Patty C –

    My sentiments exactly. This thing stinks. Their argument boils down to, “It may not be right, but it’s legal.”

    Sure it is, and it still stinks.

  15. ‘I now am certain the Senate should interdict the entire State of Illinois until such time as the Governor-for-Hire is out of there and then call a special election to fill the seat.’

    Me too, mespo. I watched Burris on Rachel.
    The look on her face undoubtedly mirrored my own.

  16. Well after seeing that incredible and pathetic press conference where Burris was named the appointee by the Governor-for-hire, and hearing him speak with the aid of his pious friend, Rep. Bobby Rush, ex-Black Panther and apparently present day race baiter, I have modified my position. I now am certain the Senate should interdict the entire State of Illinois until such time as the Governor-for-Hire is out of there and then call a special election to fill the seat. Chicago politics is crazy, but this is just plain stupid and Mr. Burris appears to have all the political and intellectual acumen of the current resident of that big white house on the opposite end of Pennsylvania Avenue from the Capitol.

  17. Ok, I had to work it out but I see now what you’re saying now. There really is no good precedent for congress denying the appointment by a Governor to fill a vacant seat in the Senate so the Senate would be violating the 17th Amendment unless they could show something was wrong with the candidate for the appointment like a known felon or someone known to be of bad character. Of course even then theres no prohibition from a convicted felon serving in the Senate as we learned with Ted Stevens so even then they’d have to have extraordinary grounds.

    Bilbo was extraordinary grounds because his racism was common knowledge but Blagojevich you feel theres still a benefit of the doubt, thus he is Governor and the 17th Amendment says he can appoint someone to the seat.

    I guess the only argument I would offer at this point would be that while Bilbo was known for being a racist and suspected of a crime, he was still not yet convicted of one, yet the Senate refused to seat him. Blagovich also has not been convicted of a crime yet we can’t say his crimes aren’t pretty much common knowledge. We hear him on the tapes trying to sell the seat. It sure sounds like that to me. But since we haven’t heard the entire tapes we can’t determine that completely. He may in the next segment of the tape that we haven’t heard yet declare “I’m jus kiddddinnnnngggg”. I’m joking of course but words to that effect could change the intent so I can see that effectively without some disposition on this case he’s technically still the Governor and the Constitution says he gets to appoint someone to fill a senate vacancy in his state. I’d still argue that given the nature of the suspected offense and its relationship to the appointment in question that it would be better if his deputy made the appointment but I can see that constitutionally speaking Burris is the new Junior Senator from Illinois.

    I guess the real underlying fear in the Senate blocking appointments like this is allowing the Senate to deny appointments or elected officials would essentially give the Senate the power to structure itself.

  18. Correction. The 17th Amendment was ratified but the state legislature had not yet passed a law giving the Governor power to make the appointment.

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