In one of the most dramatic moments in Senate history, the Democrats refused to let Roland Burris enter the Senate chamber today. Democrats do not want to recognize an appointment from Illinois Gov. Rod Blagojevich, who is accused of trying to sell the seat to replace President-elect Barack Obama. Burris attempted to be sworn in on the first day of the 111th Congress, but was told by the Secretary of the Senate that his credentials “were not in order.”
Nancy Erickson, the Senate secretary, initially cited the absence of the signature of Illinois Secretary of State Jesse White as the reason for rejecting the appointment. Burris is trying to get the Illinois Supreme Court to order White to sign the form. White has no authority to refuse his signature and is claiming the right to unilaterally block an appointment because he simply does not like or is suspicious of the appointing governor. No one has claimed that Burris bought this seat and indeed he would have been on the list of likely candidates for any governor.
It is clear that White’s actions are not true reason for extraordinary action. Senate Majority Leader Harry Reid and others stated their intention to block the appointment based on the governor’s scandal. Indeed, Reid said that, if his credentials are valid, the Senate would “proceed in a manner that is respectful to Mr. Burris, while ensuring that there is not a cloud of doubt over the appointment.”
To make matters worse, there is a rumor that Burris is being asked to guarantee that, if he is sworn in, he will not run in 2010. Given the fact that the democrats have no legal basis to deny him this appointment, such a proposal would magnify the gross abuse of power.
For Democrats who have complained about George Bush’s abusive use of authority, this is a terrible way to begin their control of both the Congress and the White House. Just as the Bush Administration argued that the President can torture because he says he can, the Democrats are claiming the right to bar any member because they can. It would create a precedent that they will regret and only fuels GOP efforts to block Al Franken. At least the GOP can cite an election controversy, the Democrats have no legal claim against this appointment.
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Mike:
Forgive the “P”. Bad typing and not an emoticon.
Mike:P
Do you give no import to the terms “returns and qualifications” contained in the clause?
The position of the Senate on the Burris matter is absurd on a number of levels. First, it is not legally defensible. I believe there is agreement that Mr. Burris meets the constitutional qualifications to be a senator. But Prof. Tribe’s comments notwithstanding, the authority of the Senate to “judge” elections must be exercised in accordance with some sort of standard. The only appropriate standard is whether the election meets the requirements of applicable state law. I have yet to see a comment suggesting that the appointment of Mr. Burris violated the law of the State of Illinois. The failure to date of the Illinois Secretary of State to sign off on the appointment is meaningless. As has already been noted, that is a ministerial act customarily enforced by mandamus.
If Senate Democrats attempt to defend their opposition on the basis of a perceived taint in the appointment process or on vague notions of fairness, their efforts will properly be perceived as arbitrary. One of the purposes of the Seventeenth Amendment was to prevent the imposition of extraneous rules for admission into the club.
More importantly, and fundamentally, the poor judgment on the part of Sen. Reid and others in the leadership represents an attempt to substitute so-called “institutional prerogatives” for the rule of law, something which I find abhorrent whether originating in the legislative or executive branch. Have we learned nothing from eight years of the “unitary executive”?
Mespo, you said it first
– AND best, IMHO!
mespo727272 1, December 30, 2008 at 8:13 pm
‘In my view Burris should accept the appointment until Blagojevich either is impeached or resigns and then promptly resign his post in the Senate. That would permit the new governor to make a new interim appointment and would cast Burris as patriot rather than serving under a taint of corruption. It is always difficult to give up power for the nation’s good. But it should be consolation that of all the famous Romans we know, Cincinnatus is still remembered (and honored) for doing just that. Call me Pollyanna.’
Mespo,
Make that “adaptation of one of the…” my kid (who turns 1 tomorrow) somehow managed to erase “adaptation” and replace it with “reproduction.”
Mespo,
It’s just a reproduction of one of the great moments in Dadaism. I’ve got to give them a hand, this is way clearer statement of the absurdity of human existence than erasing a sketch as some one draws it.
Since we’re in the Theater of the Political Absurd here, did anyone catch John Yoo and John Bolton’s article in the NYT? The two great patriots are arguing for limits on Executive authority. That’s right the Torturing Twins are pushing the Senate’s “advice and consent” role over the Executive Branch’s power to make treaties,and lamenting the diminished role of the legislature. Clever attack on the new administration or damage control for sinking careers? Bring on the hankies I feel crocodile tears welling up.
Here’s the article:
http://www.nytimes.com/2009/01/05/opinion/05bolton.html?_r=3
VT thanks for your breakdown.
Why doesn’t the court do its job, issue the mandamus, seat Mr. Burris, and then let the legislature do its constitutional duty through their rules committees? The Secretary of State did not do his job, thereby allowing judicial intervention.
The logical stepwise process in the Burris case should have been; executive (done); legislative (undone by the Secretary of State and the Senate) and then the judiciary, if needed and rarely the case.
However, a competent judiciary should see the need to prevent a potential minor constitutional crisis by intervening to encourage legislative action; especially given the nondiscretionary and bureaucratic nature of the Secretary’s signature.
I think this is a good time to wait for some more light to be shed on the situtation.
Burris was not Martin Luther mythically nailing his theses to the church door. He simply showed up with an incomplete credential.
The Illinois Secretary of State refused to sign the form as a matter of personal principle, but said that he would sign if if the court ordered it. The court can issue a mandamus to require him to exercise a nondiscretionary duty, and at that point the papers will be in order.
That is the beaurocratic problem.
The problem of principle is that the Governor put the seat up for sale.
Now a guy shows up with title to that seat.
The Senate is not obliged to rubber stamp this affair without a searching inquiry. The matter can go to the rules committee. The ultimate decision is for the full Senate. That is what the Constitution says. The Senate is the “Judge.”
This is not about democracy. This is an appointment, not an election.
And the laws are being followed. Everyone else has to show up with a credential signed by the State’s Secretary of State, and Burris is no different under the laws and rules than anyone else.
Former Federal LEO, you don’t know Dick?
Last time I checked Cheney didn’t even know if he was being incompetent in the legislative branch or the judicial branch of government. Nuance!
Worst vice-prez ever, not to mention he shot a man, his friend, in the face!
The Secretary of the Senate, Nancy Erickson, released a statement explaining why she refused to seat Roland Burris:
“On Monday, January 5, 2009, the Secretary of the Senate, Nancy Erickson, met with Clayton Harris, Chief of Staff to Governor Blagojevich, who presented Mrs. Erickson with a Certificate of Appointment for Roland Burris to fill the Senate seat vacated by Barack Obama. The certificate did not comply with Senate Rule II in that it lacked both the signature of the Illinois Secretary of State, Jesse White, and the Seal of the State of Illinois. Mr. Harris was informed of these deficiencies, and, as is our procedure, the Secretary retained the certificate and all supporting materials on behalf of the Senate.
“On Tuesday, January 6, 2009, the Secretary had a very cordial meeting in her office with Mr. Burris, his counsel and staff during which the Secretary explained to Mr. Burris and his counsel directly the reasons that his certificate did not comply with Senate Rule II.
Additionally, as the decision of whom to seat as a Senator is a decision of the Senate, Mr. Burris was advised that the Senate could refer the matter to the Senate Committee on Rules and Administration. Following the brief and amicable meeting about the Senate Rules and an opportunity for photos, Mr. Burris and his counsel remained in the Secretary’s office to hold a meeting of their own.”
Standing Rules of the Senate.
RULE II, PRESENTATION OF CREDENTIALS AND QUESTIONS OF PRIVILEGE
1. The presentation of the credentials of Senators elect or of Senators designate and other questions of privilege shall always be in order, except during the reading and correction of the Journal, while a question of order or a motion to adjourn is pending, or while the Senate is voting or ascertaining the presence of a quorum; and all questions and motions arising or made upon the presentation of such credentials shall be proceeded with until disposed of.
2. The Secretary shall keep a record of the certificates of election and certificates of appointment of Senators by entering in a wellbound book kept for that purpose the date of the election or appointment, the name of the person elected or appointed, the date of the certificate, the name of the governor and the secretary of state signing and countersigning the same, and the State from which such Senator is elected or appointed.
3. The Secretary of the Senate shall send copies of the following recommended forms to the governor and secretary of state of each State wherein an election is about to take place or an appointment is to be made so that they may use such forms if they see fit.
THE RECOMMENDED FORMS FOR CERTIFICATE OF ELECTION AND CERTIFICATE OF APPOINTMENT ARE AS FOLLOWS:
…
CERTIFICATE OF APPOINTMENT
To the President of the Senate of the United States:
This is to certify that, pursuant to the power vested in me by the Constitution of the United States and the laws of the State of __, I, A__ B__, the governor of said State, do hereby appoint C__ D__ a Senator from said State to represent said State in the Senate of the United States until the vacancy therein caused by the __ of E__ F__, is filled by election as provided by law.
Witness: His excellency our governor __, and our seal hereto affixed at ___ this __ day of __, in the year of our Lord 19__.
By the governor:
G__ H__,
Governor.
I__ J__,
Secretary of State.
I must admit to being the contrarian here and more in the Larry Tribe camp on this one. Ever since Vince Treachy raised the point,I have thought about Tribe’s article in Forbes. I think he makes a valid point that while the Senate may not bar a member on strictly ideological grounds (Powell v. McCormack), its hands are not so tied in a circumstance such as this where the appointment itself (as opposed to the appointee) offends the integrity of the Senate.
Tribe says:
“But the arguments saying the Senate must seat Burris miss the mark as well. The fact that he is indisputably “qualified” in the constitutional sense has no bearing on the authority of the Senate under Article I, Section 5 to serve as the sole “Judge of the Elections”–and, by extension, the temporary appointments–of would-be members.
…
“But that the Senate’s early December decision to exclude any Blagojevich appointee reflected nothing about the particular person he appointed cuts for, not against, leaving the matter to the judicially unreviewable judgment of the Senate itself.
For the danger of invoking doubts about the process of election or appointment, as a pretext for excluding someone that a Senate majority finds objectionable, is minimized when the decision to exclude is made in advance of any individual’s appointment, and thus under the classical philosopher’s veil of ignorance about whose ox might be gored.”
This seems to elevate the matter out of the ideological quagmire that the Powell case tried to remedy, and preserves the right of the Senate to control its membership under its Constitutional mandate to “judge” elections. The difference in the Burris situation is manifest as the Senate chooses to avoid any Blogo appointments and not merely an appointee with whom it has ideological differences. I believe this is a distinction with a difference from the decision in Powell.
I agree with what people above said. I am much more scared of a senate that disregards the law than I am of seating Burris. I see this as a piece with that group’s total disdain for the rule of law and our Constitution. And these people worry about flag burning? They probably burn their cigars into copies of the Constitution and laugh about it. I think they are dangerous. We have one somewhat functional branch of govt., the judiciary, that’s it.
It’s starting to look that way, FFLEO. As I’ve written in prior posts, more and more it appears to be one, big, happy family there in D.C. and we’re just the suckers who, like Charlie Brown, think that this time nobody is going to yank away the football.
Back in ’06, after Pelosi declared that impeachment was off the table, I began to wonder what the point was of having law makers or a justice department if the law was never going to be enforced and justice would not be ‘on the table’.
Can it be that the Democrats I voted for across-the-board are as stupid, corrupt—legally and politically—and as constitutionally ignorant as my Republican Party is; or more so?
What an unconscionable display of legislative and judicial incompetence.
Even though Patrick Fitzgerald has a solid reputation, and even though many (myself included) are persuaded to believe that Blagojevich may be a class-A sleazeball, the system of justice has to run its course. So far he has been accused. Senator Ted Stevens got to remain a senator throughout his own trial on corruption charges (even stating afterward that he had been acquitted when in fact he was convicted).
It’s unfortunate that Fitzgerald has had to push his indictment further back (3 months?) and nobody likes to think there is a corrupt governor making senate appointments, but he has yet to be PROVEN to be corrupt.
Prof Turley, to clarify your position? If Blagojevich had been impeached from the beginning (something I think should have happened) would you still feel that the rejection of Burris was unreasonable? I would like to know if you’re conflicted because of personal political reasons (understandable, given the circumstances) or if you are concerned for the blatant circumvention of the established constitutional procedures. For the record I agree with you on this issue, I just want to make sure we’re arriving at it from the same vector.
Gyres
I suggest the unfortunate answer to your question about what kind of country we would be is: The first ever…
JT,
What kind of country would we be if we applied the laws all the time instead of just when we felt like it?
This is one of those unfortunate instances where the law protects the wrong thing. The law states that the governor may select a Senator to replace another one that is unable to serve. Blagojevich, who is still governor, has done this (maybe one of his few law-abiding acts). The senate does not have the right to block people based on the fact that they were selected by a governor they are at odds with, and therefor is breaking the law.
Reid is better served to suck it up, and allow Burris in, and hope that somehow they can find a work-around. He does not have the power to bargain with Burris to prevent him from being re-elected (however slim the possibility) to the Senate. He’s creating a dangerous precedent as you have said, and maybe we ought to look into Reid’s worthiness while we’re at it.