Senator Roland W. Burris of Illinois?

The appointment of Roland W. Burris to the United States Senate, vise Barack Obama, by Governor Rod R. Blagojevich of Illinois has been greeted with virtually unanimous condemnation by members of the Senate and the press. The reasons for opposition assigned are the fact that the Governor appears to have tried to sell the Senate seat as disclosed in a number of court-authorized wiretaps; that the Governor has been arrested (but not yet indicted) pursuant to a federal criminal complaint; and that, from all tha appears, the Governor is shortly to be impeached and convicted by the Illinois legislature.

There is no dispute that the Governor's appointment is legal under Illinois law, particularly when the Legislature declined to pass legislation establishing a special election for the vacant Senate post thereby appearing to endorse the Governor's appointment power by not taking it away from him.

The Governor's appointment is valid and Mr. Burris is entitled to be seated as a United States Senator from Illinois.

For purposes of considering the validity of this appointment, the Governor must be viewed as an institution -- the validly sitting chief executive of Illinois--and not as the individual charged with crimes and other manifestly impeachable offenses.

Under the Constitution, this appointment cannot be rejected by the Senate on the grounds that the members don't like the Governor and think he is a criminal, or for any reason other than that the appointee is ineligible under the Constitution because of age, residency or citizenship.

The Seventeenth Amendment to the Constitution, effective in the 1914 election, provides for the popular election of Senators who had theretofore been selected by the state legislatures. Clause 2 of the Amendment provides that in the event of vacancies as in this case, "the executive authority of each State shall (sic) issue writs of election to fill such vacancies."

The Supreme Court (in an 8-1 decision written by Chief Justice Earl Warren, with Justice Potter Stewart dissenting only on the grounds that he thought that the dispute was moot) has declared in Powell vs. McCormack that the House had no right to refuse to seat Representative Adam Clayton Powell of New York on grounds of expenditures improperly charged to the House and his status as a contemnor in New York state courts because such an exclusion was not based on age, residency or
citizenship.

It is now proposed by the Senate's leaders that Mr. Burris' appointment be referred to a Senate committee to investigate the circumstances of his appointment thereby delaying Mr. Burris' service as a Senator until after the date of the Governor's proposed impeachment and a new appointment by the current Lieutenant Governor, a person the Senate leaders appear to like and respect. This behavior by the Senate finds no support in the Constitution.

The parade of horribles marching out of the Senate's refusal to admit an appointee of a Governor when the Governor is disfavored does not need to be repeated here. Suppose the Governor is a Communist or pro-Palestinian or supports further war in Iraq. What then?

Comments

[LeftRight]

As an Illinoisan I can't stand my governor. On the other hand, Baer is right, the Senate has no legal grounds to NOT seat Burris. They should just accept that, seat the man, give him no important committee memberships, and then wait two years, when Obama's term as Senator would have been up!

[FebM]

There is no "suppose" situation here. Blago has betrayed public trust. His power comes from the people and when his behavior is all but contrary to that public trust, he should be civil enough to know when that is lost. Burr cannot pretend to be so duty bound that he feels IL is too desperate to shame themselves in the national scene. Playing the race card is a low road that has no place in 2009.

[WoodyGrant]

Sorry to say, I think Baer's analysis is accurate. There is no legal ground for denying this appointment unless it is revealed that Blago "sold" the position to Burris (which at this point doesn't seem to be the case). Burris will be a weak Senator and probably a temporary one (maybe even opening up possibility that the seat could go Republican in next election), but to deny the seat opens up all sorts of political-legal issues. Can you imagine if a Republican Congress tried to deny a Democratic governor's appointment b/c the Governor was under some sort of cloud (but not impeached)? Yes. I can too, and that's why not seating Burris is a bad precedent. Let's put some of the blame for this on Fitzgerald too who created this mess by not indicting Blago sooner.

[ckdogs]

Burris had nothing to lose. He likes the limelight, and could not otherwise aspire to being a senator. Even if he just serves until the next election - he gets 2 years as a US senator, plus - I believe there is an additional pension involved, as well. If this article is true, and the law is on his side - why not?

[nextone]

blago is a criminal but his appointment is valid. blago has messed up big time (check out his other antics: http://tv1.com/playlists/109) and this will only taint burris' reputation.

my question is, how can burris accept the appointment? his career will be tainted by blago's mistakes. does he think he can stay senator when it comes to an election?