After I linked in an earlier post to the analyses of legal scholars who had opined that the Senate isn't authorized to deny the duly appointed Roland Burris membership in its club, several other preeminent jurists came forth with a different conclusion based on reasoning that the first group had apparently overlooked. Akhil Reed Amar, Josh Chafetz, Jack Balkin, Walter Dellinger and Lawrence Tribe say it's irrelevant that an appointee's qualifications may be judged only according to criteria specified in the Constitution. They say the real issue here is the Senate's constitutionally prescribed authority to judge returns, which they believe appropriately involves scrutinizing the process that led to Sen. Burris's appointment. Even though no case law has been cited to support their position, they might be right. But the issue seems highly debatable.
Although he calls for "a renewed commitment to the rule of law" in the first paragraph of his Politico piece, Dellinger then goes on to posit that "[Rod] Blagojevich's appointment is, of course a shameful act..." Dellinger's use of the phrase, "of course," suggests his reasoning is both obvious and unassailable, but it is neither. The acclaimed attorney, who ostensibly believes the law is the most important thing, doesn't even bother to explain why the big, bad, scary taint should be given more weight than the governor's legal obligation to fill a vacant seat. I'm open to an argument, but how about making one, counselor?
Now comes a Chicago Sun-Times article that reports Senate Majority Leader Harry Reid might have been caught on tape pressuring Blagojevich to "appoint either state Veterans Affairs chief Tammy Duckworth or Illinois Attorney General Lisa Madigan..." That would be the same Lisa Madigan who recently asked her state's highest court to forcibly remove Blagojevich from office for reasons that legal experts of all stripes have dismissed as utterly preposterous. Therefore, it now seems fair to consider the possibility that Reid and his allies might have decided to oppose any Blogojevich appointee (other than Duckworth or Madigan) as an act of political vindictiveness in response to the governor's refusal to kowtow to party leaders. If so, these loyalists now possess a most tenuous basis to claim that their hostility to Senator Burris is motivated by a desire to neutralize a corrupt process. What about their own process?
In another curious Politico post, Ben Smith has robotically fed to his readers the unchallenged and incorrect assertion by Nathan Maddox, senior legal advisor to Illinois Secretary of State Jesse White, that White is required to register Senator Burris's appointment, but not to certify it with his signature or state seal. But as I mentioned in a previous column, and in a so far unanswered email to Smith, the law actually requires White "to countersign and affix the seal of state to all commissions required by law to be issued by the Governor," and to register the appointment.
When all the legal and political factors are considered, it seems that Team Reid has set itself up for embarrassment and inevitable defeat. Even if these supposedly upright politicians manage to delay seating Senator Burris while Blagojevich remains in office, they probably would be nonetheless stuck with the "tainted" appointee after the governor is gone. Similarly, it makes no sense that the Illinois legislature has sped up its impeachment efforts in response to Burris's appointment. What do they imagine their suddenly accelerated pace will accomplish with respect to the unwanted appointee? The law in Illinois -- which the U.S. Senate is not empowered to change or override, even if it has the authority to keep Burris from being immediately seated -- indicates that the governor's valid appointment will remain in effect "until the next election of representatives in Congress..." In other words, it's Burris or nobody until 2010. I doubt any new and conflicting legislation that might be passed in the interim could be applied retroactively. As the saying goes, you can't unring a bell.
The averred taint disqualification presupposes that had he not been arrested, the Illinois governor would have based his decision on "proper" considerations. But why make that assumption? The only difference might be that under present circumstances, Blagojevich's lousy yardstick is known (or reasonably presumed), whereas if he had not been arrested, his lousy (albeit lousy in some different way) yardstick would be unknown (or not so readily surmised). The conjectured process that many are characterizing as intolerable doesn't strike me as more objectionable than the tendency of most elected representatives to prioritize self-interest or party-interest over what's best for the public. Politicians are often influenced in ways that aren't ideal or admirable. So what?