January 1, 2009

The Senate has the power to exclude Roland Burris, say lawprofs Akhil Reed Amar and Josh Chafetz.

They look at Article I, Section 5 of the Constitution — which makes each house of Congress "the Judge of the Elections, Returns, and Qualifications of its own members" — and find a power to judge the Blagojevich appointment:
At the founding, Senators were elected by state legislatures. If the Senate believed that legislators in a given state had been bribed into voting for a particular candidate, the Senate could refuse to seat him.

Because of the word "returns" in Section 5, what is true of elected Senators is equally true of appointed Senators. According to the Oxford English Dictionary, a "Return" in the time of the framers involved a report of an appointment made by a sheriff or other official. If the Senate may refuse to seat a person picked in a corrupt election, it likewise may refuse to seat a person picked in a corrupt appointment process.
Amar and Chafetz need to deal with Powell v. McCormack, in which the Supreme Court said that the House did not have the power under Article I, Section 5 to refuse to seat Adam Clayton Powell. That case focuses on judging "qualifications," and the Court said that only relates to the qualifications specified in the Constitution — age, citizenship, and residency. Beyond those 3 qualifications, the people had the power to choose the representative they wanted. But Powell was clearly the people's choice, so what do you do with Powell when the governor appoints the new member? For an accurate analogy for the Burris appointment, imagine if the problem with Powell hadn't been that the members of Congress thought he was corrupt, but that they thought there had been a fraud in the election.

Now, the Powell case was about whether Powell could use the courts to override the decision to exclude him. The argument on the other side was that the House had the final call about the scope of the power to judge the qualifications of their own members. In that view, which the Court rejected, a vote to exclude already embodied the constitutional interpretation that they had the power. Our current discussion of the question of the scope of the power to exclude Burris will affect how the Senators think about the scope of their power, and articles like Amar and Chafetz's should embolden the Senators, and they may vote to exclude him. If that happens, Burris may sue in federal court, and then the court will have to decide whether the Senators' assessment of their own power is the final answer about the meaning of the Constitution.

But doubts about the scope of the Senate's power to look into the circumstances of the appointment may give the Senators pause. The vote to exclude Burris may fail — because of these constitutional doubts and for other reasons. If that happens, Burris will be seated and there will be no occasion for a court to discuss the scope of the exclusion power.

To be sure, there are plenty of other reasons to seat Burris. For one thing, if we rely on the theory that the Senators have the power to exclude him because the appointment process was corrupt, they will need to go through some sort of factfinding process. Blagojevich faces his criminal trial, but he is the duly elected governor of Illinois, with the power to appoint the Senator. What sort of parallel process in the Senate will be needed to make the exclusion legitimate?
In this context, the Senate itself is a judge, in the words of the Constitution, and can decide facts for itself. It need not follow the rules of criminal courts. That means it need not find Blagojevich guilty beyond reasonable doubt, as a court would if his liberty were in jeopardy. It is enough for the Senate to reject Blagojevich's appointee if a majority of senators are firmly convinced that Blagojevich is corrupt and that any nomination he might make is inherently tainted by such corruption.
If the Senators exclude Burris because they simply feel quite certain the appointment is tainted and not because they've gone through some impressive and fair factfinding, when — if — Burris goes to court to override their decision, Burris's argument about the scope of the power to exclude will look much more appealing. The Senate will need to argue that the court should defer, but the court will think less of this notion of deference if the process to be deferred to is not very impressive. Amar and Chafetz recognize this reality of litigation:
To make sure its ruling sticks, the Senate should follow its own procedures with due deliberation. Burris' case can be referred to a committee for careful review. He need not be seated while this committee does its work, and it will be very hard for Burris to persuade any federal judge to interfere in the meantime, especially if Senate Democrats and Republicans unite. With any luck, Blagojevich will be out of office soon enough and a new appointments process (or a special election) can begin that would supersede the attempted Burris appointment.
The delay itself is effective, but it does mire the Senate in an investigation of the Democratic governor. The argument will be made that the effort to exclude is more of a power grab than the governor's attempt to fulfill what is, after all, a duty of his office. Should the Senate Democrats want that? What a nasty preoccupation for Congress at what should be the fresh beginning of a new administration!

Amar and Chafetz make a good argument about the power to exclude but in doing so, they expose the political disaster it would be to vote to exclude.

ADDED: Lawprof Sandy Levinson puts it well:
I don't see how one can mount a good-faith argument against seating Burris unless one is willing to open each and every gubernatorial appointment to some kind of "good-government" scrutiny....

Should the motives of Gov. Patterson [sic] be subjected to relentless scrutiny if he bows to pressure to name Caroline Kennedy as a tribute to a dying senator and, in addition, to get access to the Bloomberg and Kennedy donor list that presumably comes with that appointment?

39 comments:

PWS said...

I don't know much about Burris, but if there's no evidence he paid to play and he's otherwise qualified, the Senate be hard pressed to refuse him. What other grounds are there? Just because Blago is tainted in general does not seem to detract from the appointment of Burris. How does Burris' status as an African American factor in? I think it works in favor of him being seated.

Don't you think this appointment is more about Blago than Burris? The Gov. wants to show he's still gov. by doing gubernatorial things.

save_the_rustbelt said...

If this becomes a prolonged affair, and the Senate has only 99 voting members during the early days of the Obama administration, short 1 Democrat, the Democrats could have a real mess on their hands.

In an attempt to punish Blago will Obama derail his own agenda? Time will tell.

Skyler said...

I think there are three coequal branches of government and the Supreme Court is not the only one that gets to decide what the Constitution says.

Marbury v. Madison gave the court, or rather the court gave itself the power in Marbury, to decide the constitutionality of matters, but in the face of clear text and intent in the Constitution I don't think the legislature should cede all authority to the courts. That would only serve to make the courts omnipotent in all matters.

The courts have traditionally stayed out of political questions but there is nothing to enforce them to stay out of political questions except their own definition of what constitutes a political question. The legislature, and the executive for that matter, has every right to ignore a judicial overreach. This is the intent of the checks and balances of our constitutional structure.

So, even if the court were to say something about the matter, the legislature should feel free, if they are so disposed, to ignore it. The are granted the power to do so by the Constitution and need no one's permission to use that authority.

Simon said...

Amar & Chafetz cite not a single authority or example for their claim that "[i]f the Senate believed that legislators in a given state had been bribed into voting for a particular candidate, the Senate could refuse to seat him." Without support for that statement, everything thereafter is shaky in the extreme.

The only evidence they offer is a page linked from the claim that "[t]he power to judge elections and returns has been used on countless occasions in American history, at both the state and federal level, to exclude candidates whose elections and appointments were suspect." But the link offers no support. It cites an 1893 example where a Governor appointed a Senator, but that doesn't help: prior to the 17th Amendment, Senators were elected by state legislatures, and since no such election had taken place, the Senate could exclude the appointee under its power to judge an election. The 1913 example is quite simply irrelevant, as Amar & Chafetz's own description of it makes so plain as to require no further discussion here.

As Althouse noted, "Amar and Chafetz need to deal with Powell v. McCormack," and their attempt to distinguish it is vacuous at best. They suggest that "[t]he key fact is that there was no doubt whatsoever that Powell was the people's choice"; even if that is "the key fact," which I doubt, it's an inaccurate statement of the key fact. The key fact, on this view, would be that the electorate was the decider, and Powell, as the electorate's choice, was the decider's undisputed choice. In the instant context, the governor is the decider and there is "no doubt whatsoever" that Burris is his choice. (Amar & Chafetz conceded as much, a few paragraphs earlier: "we might think of an appointment as an 'election' by one voter," they wrote.)

If this makeweight argument is the best that can be made for excluding Burris, the litigation is going to be short, entertaining, and - judicially-speaking - unanimous.

Simon said...

Skyler said...
"Marbury v. Madison gave the court, or rather the court gave itself the power in Marbury, to decide the constitutionality of matters...."

No, it didn't.

Simon said...

Come to think of it:
"Blagojevich faces his criminal trial, but he is the duly elected governor of Illinois, with the power to appoint the Senator."

He hasn't even been indicted yet, correct? So, even if there are circumstances in which a Governor's selection could be thrown out by the Senate, this would be the case on the extreme margin.

Do we really want to say that the Senate can refuse to seat a duly-appointed Senator simply because the federal executive branch - or any single federal prosecutor - has filed a criminal complaint against him? No indictment, no grand jury even impaneled? Can the Senate exclude a governor's choice if the Governor has a civil complaint pending against him? What if nothing has been filed, civil or criminal, but the FBI is investigating? What if the Governor has simply been accused of malfeasance in the pages of the New York Times?

The answer to Constitutional questions doesn't turn on their convenience.

Skyler said...

Simon, your saying so doesn't make it true. You're kind of turning two centuries of civics classes on their heads with that silly assertion.

And the reason the legislature was given this power to refuse to seat someone is exactly because the courts may be slow, the corruption of the state government may be obstructing justice, etc. Your example is exactly why the legislature has that power.

Bruce Hayden said...

It still comes down to bad precedent if the Senate can get away with this. What would keep one party with a simple majority from seating members of the other party? That would be a great way to get around any threat of filibuster. And, after a couple of election cycles of refusing to seat its opponents, it would have near autocratic rule.

The checks and balances answer to this potential abuse of power is that the people could and presumably would throw out enough of Senators from the offending party if this started happening - if they could get their way.

Thus, if we wish to keep the democratic elements of our form of government, denying the Legislative branch the ability to prevent those duly elected or appointed to those Houses is key.

Der Hahn said...

Simon, can you clarify if you're talking about the power to refuse to seat a Senator in general or Burris specifically?

It looks like a strong argument can be made that Burris should be seated but can that argument be generalized? If the Senate has sufficent proof that an appointment was obtained by bribery or fraud (distinct from saying the Burris appointment is corrupt) must they accept the appointment without question? If they are the judge of the appointment process ('returns'), why should they wait for the appointer to be tried and convicted before even considering the question?

Bruce Hayden said...

The courts have traditionally stayed out of political questions but there is nothing to enforce them to stay out of political questions except their own definition of what constitutes a political question. The legislature, and the executive for that matter, has every right to ignore a judicial overreach. This is the intent of the checks and balances of our constitutional structure.

To some extent, I was making this argument when we were discussing the courts litigating over the TSP and FISA. However, for the most part, discretion was the better part of valor, and the courts stayed away (and the one that didn't, got slapped down hard). Too much chance there for the courts to lose in a showdown.

But on the other hand, they were willing to jump into Bush v. Gore. The difference? With the TSP / FISA, the Judicial Branch was likely to lose apparent power when faced with an Executive intent on protecting the American people and willing to chance such a confrontation.

In this case, the Senate would just look petty and corrupt itself, if it tried to impose itself here. And so, you could probably expect that they would jump in on the side of Burris.

And while this is tokenly a separation of powers issue (and I think arguably one of checks and balances), it is not really a "political question" as that term is typically used. Rather, political questions are those where the Judiciary wants to punt because it is being asked to make policy that should be made in the Legislative Branch.

Bruce Hayden said...

It looks like a strong argument can be made that Burris should be seated but can that argument be generalized? If the Senate has sufficent proof that an appointment was obtained by bribery or fraud (distinct from saying the Burris appointment is corrupt) must they accept the appointment without question? If they are the judge of the appointment process ('returns'), why should they wait for the appointer to be tried and convicted before even considering the question?

What is to keep them from using this power corruptly (or politically) themselves?

The major check on the Legislative branch is that they can be voted out of office. But that does no good if they can refuse to seat anyone they don't like.

Also, there is the problem that if a governor can be second guessed for his use of his appointment power, should he ultimately be removed from office, then what keeps his power for signing bills into law from being challenged too, should he subsequently be impeached?

I probably have a bad attitude here, but my view is that Congress shouldn't have any power in refusing to seat validly appointed interim Senators and Representatives, regardless of underlying corruption. If someone bribes a governor for an appointment to Congress, then the remedy should be to indict him, try him, and if convicted, remove him for cause. And if the governor took such a bribe, then indict him, try him, and let his state remove him for cause.

Skyler said...

But Bruce, what if the state executive refuses to seek an indictment of the governor because the executive is the governor?

In this very case, if the assertions are true, the governor is corrupt and any appointment is likely part of that corruption. The people of Illinois have just now been made aware of it, yet the governor appoints a senator before the state government can impeach him.

Isn't this exactly the situation that is intended when the Constitution was drafted giving congress the power to refuse to seat someone?

If this does not fit the intent of the Constitution, then what exactly do you think they intended it for? Did they include this provision just because they had extra words to toss around?

Der Hahn said...

If someone bribes a governor for an appointment to Congress, then the remedy should be to indict him, try him, and if convicted, remove him for cause.

But I see this conflicting with the clear text of the Constitution that gives the Chamber the right to judge whether a member should be seated.

In addition to Skyler's point, what about a situation where a member is tried and convicted on trumped up charges? (think about what happened to Tom Delay) Is the chamber obligated to blindly follow the conviction? If they have discretion after conviction, then why don't they have the power to make their own determination in the first place?

There are other structural and political barriers to this happening.

An appointment to the Senate is only temporary pending a special election, and a House vacancy triggers an automatic special election.

It would only work well if the political authority in a state is of the same party as the Senate majority so that an appointment can be made and the required special election delayed.

After a couple of rounds of special elections or appointments, I'm pretty sure the spectacle of duly-elected Senators and Congressmen being turned away from the chamber would inspire signficant action.

somefeller said...

What a mess. If the Democrats are short one Democratic Senator because of this fiasco, Obama's conciliatory moves to Joe Lieberman (which I thought were wise at the time) may end up being vindicated. Gotta play with the hand you are dealt.

BJM said...

Or is the Burris appointment simply a legal ploy to stall Blago's impeachment?

The appointment removes the impetus for accelerating the state legislature's impeachment process until and if Blogo is indited. Buying Blago time to make a deal.

It also bumps the media frenzy up the political food chain to the federal level, thereby deflecting Blogo's problems and providing cover for the state Democrat's machinations to save their own butts.

Otherwise, why hasn't the Chicago machine dissuaded Burris from accepting the appointment, or is he a sacrificial lamb? Perhaps the political fix in again, nothing is too bizarre at this juncture in Chicago politics.

Burris takes the temporary media hits to his reputation, gains the seat in court and retires in 2010 with the prestigious and income enhancing title of US Senator on his CV.

An indirect bonus is that a public battle with a well respected black Democrat could be the Coup de grâce for the weak and unpopular Reid, leading to his replacement by someone more attuned with the Obama Administration's goals. Without Reid Pelosi would be forced to play ball with Obama as he tacks center.

Or I may be overly cynical.

Bender said...

I see this conflicting with the clear text of the Constitution that gives the Chamber the right to judge whether a member should be seated.

Der Hahn -- the Constitution does NOT give the Senate "the right to judge whether a member should be seated." The Constitution only gives the Senate the authority to judge qualifications (the elections and returns provisions not being applicable to an appointment). And the sole qualifications for an appointed senator are (a) at least 30 years old, nine years a U.S. citizen, an inhabitant of the state for which he is chosen, and (b) the state governor having legal authority to appoint. That is the full extent of the Senate's judging authority.

And it is wholly undeniable that Burris meets his qualifications, and Blago still retains his legal authority to act as governor, however unwilling folks may be to submit to that authority.

If the Senate has absolute authority (and Powell says it does not) and if the Senate can therefore arbitrarily decide not to seat Burris, there is absolutely nothing to stop an existing majority from refusing to seat a member from the minority party. There would be nothing to stop the Democrats from refusing to seat a member merely because he was appointed by a Republican governor or because he was elected as a Republican. Surely, no one can seriously argue that the Senate's power is, or should be, that extensive. If so, we have stopped being a republic and have become a despotic autocracy.

Tully said...

An appointment to the Senate is only temporary pending a special election

Wrong, Der Hahn. Better go re-read the 17th Amendment. Unless and until the Illinois legislature exercises its power to use the special election option, the power to fill the remainder of the entire term by an appointment remains entirely the governer's.

Blago beat them to the punch.
And once the Guv has actually made an appointment per the 17th and existing Illinois statute, it's a little late for the legislature to go that route.

They had the chance to take that vote three weeks ago. They punted instead. Illinois Dems killed the special-session vote, perhaps out of fear that the GOP could pick off the seat in a special election highlighted by the ongoing Blago spectacle.

dualdiagnosis said...

At least this distracts us from the other tainted appointment, Hillary Clinton and the emoluments clause.

Ken said...

If there were a Republican majority in the Senate, every media outlet from Honolulu to Bangor would be screaming racism. Democrats, of course, get a pass. I doubt I would agree with Mr Burris on much, so I don't care much if he is the next Senator from Illinois. The Democrats will do whatever they want and African Americans will still give 90+% of their vote to the party of Orval Faubus and Lester Maddox. The media will continue to claim Republicans are racist and Democrats are post-racial.

The Democratic Party will continue to be as honest as Rod Blagojevich, as race neutral as Al Sharpton and as accurate as the New York Times.

LegalTender said...

I think Burris is a good choice. He is unlikely to win re-election at the end of his appointed term, so the voters will get to see a fair fight among republicans and Dems (and probably quite a few Dems throwing their hats in the ring in the primary).

Of course, the Dems are opposing this for exactly this reason- they'd rather have a candidate now that might lock up the seat for this term and the next one . Democracy is messy and to be avoided.

Chip Ahoy said...

Honey, pass the popcorn, please.

BJM said...

Ken said: ...as accurate as the New York Times.

Wow. That's harsh.

Rich B said...

Oh boy, this is great!

Instugator said...

Ann, Powell v. McCormack did not help Louis Wyman in 1974 after he won his election, nor did it help Richard McIntyre in 1984. Court decisions do not matter as long as the other branches of government refuse to acknowledge them. In short, the Senate can do what it will regardless of what the constitution says. If you need additional evidence, what about Sen Clinton's pending appointment to Secretary of State.

Joe said...

Mind you this, is the same senate that is sitting blindly by while the Bush Administration diverts money authorized to by troubled assets to other purposes, such as loaning it to two automobile manufacturers.

Add Hillary Clinton's pending appointment and McCain-Feingold and we have a senate with utter ignorance and utter contempt for the US Constitution.

Psota said...

In the whirl of events surrounding the Rod Blagojevich scandals, it's instructive that the only person who seems to be keeping his head, and acting with complete confidence, is Blagojevich himself. That shouldn't be too surprising. For one thing, he is obviously shameless, which will get you through many an angry breakfast with your mistress, not to mention an impeachment hearing.

More important, Blagojevich remains - it can be hard to remember this - the governor of Illinois. That gives him the power to do things like appoint Barack Obama's replacement in the Senate over the objections of virtually everyone in the state and national establishment of the Democratic Party.

Many have hinted loudly that Blagojevich is crazy. They wish. What Blagojevich is doing, and has been doing, is engaging in some of the most naked and aggressive acts of pure power by a US politician that we have seen in a long time. He is not doing this to "save the environment," or "to make the world safe for democracy," or even "to protect the children." He is acting solely in his self-interest, using the power of his office, and the tools that the law has given him, to regain his base and save his skin. He can appoint the U.S. Senator from Illinois, and by God, he will exercise that right. I can't wait to see what he has planned next, but I imagine that public school teachers will be involved.

Liberal pundits have issued weighty news analyses with headlines like "Tough Calculus for Blagojevich." These analyses dance around a lot, trying to suss out what he is up to, as if Blagojevich was a triangulating Bill Clinton clone trying to pass NAFTA. They dance around because what is happening is an ugly reminder of the dark side of the Democratic coalition; that it is made up of disparate groups that can be mollified with favors, appointments, and politically correct pronouncements. It should come as no surprise that Blagojevich went to an impromptu sit-down strike on the night before his arrest. A Democrat can never go wrong defending a union against faceless management and stingy banks.

It should also come as no surprise that Blagojevich would call upon former Black Panther Bobby Rush - the only man to ever defeat Barack Obama in an election - to take the lead in a race baiting news conference in which Blagojevich announced his choice for Illinois' new Senator. Announcing that Illinois now has a "black" Senate seat will go a long way towards support from the civil rights crowd, no matter how undeserved that support might be.

What Blagojevich is doing is what "normal" politicians call shoring up their base. Clinton did it during Lewinski-gate, using Jesse Jackson and assorted feminists to accomplish what Rod is trying to do; hold on when the evidence and good morals say you should leave (worked with Spitzer...). Republicans in trouble do it every time they wrap themselves in a flag and head to Bob Jones University. Usually, there is a veneer of respectability over these things, illusory though they might be. With Blagojevich, there is no illusion, just a naked power grab.

One has to wonder what the Prius driving, white progressives in Evanston, Hyde Park and other enclaves of the Illinois liberal intelligencia think of all of this. Their political views are based, essentially, on the idea that they are the Enlightened Ones, who have joined with minorities and union workers to pursue The Cause; bringing the patriotic, evangelical, entrepreneurial America to heel. They provide the Democratic Party with its brains, if not its brawn. Are they embarrassed by this (and by their earnest voting patterns that have enabled this corruption)? Or are they waiting for their turn at the next Blagojevich press conference? Hey! How about some new funding for Bill Ayers' education reforms!

Simon said...

Der Hahn said...
"Simon, can you clarify if you're talking about the power to refuse to seat a Senator in general or Burris specifically?"

I think the Senate has the power to judge the elections, returns, and qualifications of its members. None of those are implicated here, in my view; Burris obviously meets the qualifications, and there has been no election to judge. As to returns, Amar concedes (I think correctly) that the original meaning of an election return is not far from its meaning today: a "return" was simply a report of the result, see also entry in 2 Johnson's Dictionary of the English Language (1799). The Senate could judge whether Burris was actually appointed by Blagojevich, but that's a dead end. The power to judge returns has been mooted by time and technology, it's largely vestigial.

A person comes to Congress because a decider has made a decision. Ordinarily, the electorate is the decider; in Senate elections before the Seventeenth Amendment the decider was the legislature of a state, and subsequent thereto, in cases such as this one, the decider is the governor. What Senate Democrats are asking - and what Amar is defending - is not so far from what Justice Douglas warned about in his Powell concurrence. Douglas worried that Congress shouldn't be able to refuse to seat a properly-decided upon member because they didn't like the decider's choice. What Senate Democrats are asking for here is not so different: they want to refuse to seat a properly decided-upon member because they don't like the decider itself.

And they want this, mind you, because it's politically inconvenient. Because the decider is politically unpopular and has allegations hanging over his head. But the allegations surrounding Blagojevich have yet to face a grand jury, let alone a petit jury. Even if they are proven, there is not a shred of evidence adduced that the appointment of Burris was tainted by corruption. The only reason the Senate wants to keep this man out is because it's an embarrassment to the majority party, and I don't see "not an embarrassment to the majority party" listed in the qualifications of Senators.

If Ted Stevens had been reelected, there would have been no power for the Senate to refuse to seat a convicted felon; how absurd would it be for the Senate to have the power to refuse to seat someone simply because the authority that put him there is contemptible? And if that's the new rule, if Burris can be excluded because the Senate doesn't like the decider in his being there (the Governor of Illinois), I move that the Senators from California not be seated on the same grounds.

Skyler said...

Well said Simon, what you say makes a lot of sense.

There's just one problem. It has nothing to do with the words in the Constitution. Even the Supreme Court doesn't have the power to change the very clear meaning of the words. If they rule otherwise, they have acted wrongly and the legislature has every right to balk.

Besides, like I said before, what was the point of adding section 5 if it is meaningless? Did the drafters have a quota for number of words to include in their document?

Simon said...

Skyler said...
"There's just one problem. It has nothing to do with the words in the Constitution."

I have no idea what this means. What I have said above is that "the words in the Constitution" tell us what the Senate can judge: it can judge the elections, the returns, and the qualifications of members. And none of those bases support the Senate's exclusion of Burris. There has not been an election to judge. The validity of the return is uncontested. And the qualifications are undeniably met. How, then, can you imply that it's my position that depends on an atextual reading of what the Constitution authorizes, when the only argument of any kind that would allow the Senate to refuse to seat Burris rests on a power that is implied at best?

From Inwood said...

I'm coming late to this thread, & Profs Althouse, Amar, Chafetz, & Volokh, & their commenters have pretty much exhaustively analyzed the issues. Nevertheless, I think that psota has explained the issues best overall: The appointment has been made by the proper authority & the appointee fits the requirements for appointment & doesn’t seem to have bought his appointment, except by years of toiling in the cess pool of Illinois politics. And Harry & The Dems have a revoltin’ development on their hands, which will be fun to watch.

My guess, for what it’s worth, is that Burris takes his seat & every Dem in the Senate, of which there will on Jan 3 be 58, lets it pass as if it were Gov. Blago declaring nothing more than Chicago pizza is better than NYC pizza. And the Republicans will let it pass as being unclear legally & very clear racially.

At the risk of being dismissed as a dilettante, I would also suggest that anyone who has not seen it watch Preston Sturges’s greta movie: The Great McGinty, where a crooked party boss (but I repeat myself) makes a bum, OOPS make that a down-on-his-luck citizen, the state governor. (Please no comments that I’m a racist who is “equating” Burris to a bum. It’s called “arguing by analogy” & rarely is an analogy intended to = a complete equation.)

Skyler said...

Simon objected: " it can judge the elections, the returns, and the qualifications of members. And none of those bases support the Senate's exclusion of Burris."

What do you think it means to "judge?" It means deciding whether the elections, returns and qualifications are satisfactory. It seems that you just appointed yourself as the judge. You are perfectly free to have an opinion, but according to the Constitution only the Senate has the authority to determine the legitimacy of the elections, returns, and qualifications of Senators. It may not be a good system, but that is the system, very clearly written.

All that being said, I agree with Inwood that this won't happen. The Blagoj controversy will blow over soon enough and no one outside of a few blogs will really care anymore about this appointment.

Richard said...

I agree with what Simon has been saying, but I would like to add one thing. Accepting that "election" and "return" also apply to appointments, there is really only one inquiry, "was the person presenting credentials appointed by the executive?" That does leave room to investigation for fraud, bribery, and the like. If the appointee obtained the appointment through illegal means, the Senate has an argument that the appointment is void. However, everyone is taking great pains to say they are not accusing Burris of anything of the sort. They are saying that they don't trust Blagojevich to make a good choice. It is hard to see how a lack of faith, however justified, is enough to say the appointment was void ab initio.

If we are going to start rejecting senators because of a lack of faith in the appointer, we need to think about rejecting senators due to lack of faith in the electorate. After all, Illinois voters elected Blagojevich, George Ryan, Douglas Walker, Otto Kerner, Paul Powell, Dan Rostenkowski, Mel Reynolds, and two Richard Daleys.

Finally, I want to correct something said above. Burris would serve until the next election of representatives, not the end of the term. Thus, he would serve until November 2, 2010.

Simon said...

Skyler, you're addressing their power to judge. I'm talking about - and Powell speaks to - what they have the power to judge. Even if you are correct that the Senate has authority to decide whether an election was "satisfactory" (an extraordinary claim for which I have seen no examples or authority cited here or elsewhere), that is not implicated by a temporary appointment. The Senate has authority to judge if someone is, in fact, a duly-chosen Senator; that technology and the mass media revolution has made the power obsolete in the mine run of cases (as Judge Easterbrook put it in an analogous context, the constitution has stayed the same, but the world has changed) doesn't license expanding the power to cover new areas that we think sound plausibly within its terms.

The bottom line is this: if the Senate excludes Burris, Burris will litigate, he will win -- and he should. The maintenance of the structural constitution shouldn't be abandoned to those who have incentives to bend them. In this instace, the court already rejected that path (again, I think rightly), leaving you to re-argue Powell.

Skyler said...

Simon, you seem to think that the court has legitimate authority in this matter. They may have claimed it, but the Constitution clearly says that the judge of the matter is the legislature, not the courts.

Powell may be what the courts have said, and it's fairly ambiguous, but the court had no business deciding Powell. And Powell doesn't apply in this case anyway.

DaveW said...

Great post and comment thread, thanks professor.

The more I've thought about this the more I agree with Simon. They can't do this and it's not a good idea to let them.

Blago is the sitting Gov and has the power to make the appointment. You and I can chat about Blago being a scumbag but the fact remains that Blago has been convicted of nothing. He hasn't even been indicted. The Ill Dems could have stripped him of the appointment power or moved to impeach him and chose not to do so. Fitz has asked for 90 additional days to present even to a grand jury.

What else can Blago not do? I don't know what a Gov does in Ill (in Texas we have a 'weak Gov') but are all those functions suspended as well? Is government in Illinois suspended while this gets worked out?

Burris has been duly appointed and is qualified. They're going to have to seat him.

Moreover, it isn't a good idea for the Senate to grab this power. I don't want Reid etal deciding whether they like a particular senator (or his/her circumstances) enough to seat him/her.

Simon said...

Skyler said...
"Simon, you seem to think that the court has legitimate authority in this matter. They may have claimed it, but the Constitution clearly says that the judge of the matter is the legislature, not the courts."

No, the Constitution doesn't say that. The Constitution clearly says that the legislature is the judge of the elections, returns, and qualifications of its members. It does not say that the legislature gets to unilaterally redefine what those terms mean, and therefore, which matters it can judge under that grant of authority. That question is analytically distinct, and as a question of law is a valid subject of inquiry for the courts. That's precisely the point of Powell. The Senate could not refuse to seat Burris on the grounds that not enough black people voted for him, under the guise of judging the election.

"Powell may be what the courts have said, and it's fairly ambiguous, but the court had no business deciding Powell. And Powell doesn't apply in this case anyway."

Powell's holding as to the qualifications clause, I agree, doesn't squarely apply to this case, but its holding that such cases are justiciable very much applies to this case - indeed, it decides the threshold question.

We're back to Althouse's point - like Amar and Chafetz, your position requires you to deal with Powell. That even so eminent a scholar as Amar has failed so totally to make even the most anæmic distinction demonstrates the impossibility of dealing with it that way. That leaves you to urge that it be overruled. If that's your position, as it seems to be, you're going to get nowhere. All five justices from the Thornton majority are still on the court, and I'm inclined to think that Roberts and Alito will join them. If you go to the Supreme Court with a theory that depends on overruling Powell, you're going to lose.

My advice to the Senate Democrats is similar to Rusty's advice to Benedict in Ocean's 11: you can drop this fight quietly, or you can lose it embarassingly in the courts. The choice is yours.

Skyler said...

Well, Simon, even L. Tribe agrees with me.

But let's put out a hypothetical. You're worried about the legislature excluding anyone in the minority, an abuse of power.

But let's look at another situation. Let's say that the Supreme Court made a ruling that only the judicial branch has the authority to declare war. What's to stop them from doing so? It only takes a conspiracy of five to do it. Yes, it's outlandish, but possible.

So that's the premise of the hypothetical. By your theory of the Constitution, that's the end of the story. The legislature has to just live with that ruling even though it's contrary to the clear words of the text.

I say nonsense. The legislature would have every right to tell the courts to pack sand.

There is no difference between this hypothetical and the subject at hand. The Constitution says the judge of the matter is the legislature. The courts have no business being involved.

Simon said...

Skyler said...
"Well, Simon, even L. Tribe agrees with me."

And even Sandy Levinson agrees with me. We all find ourselves with strange bedfellows from time to time. I must point to Mike Rappaport's post, which succinctly puts the point I was getting at above about your assumption that the Senate's power to judge includes the power to judge what it has the power to judge: "In this area, one must distinguish between who gets to decide and what the Constitution requires of the decisionmaker." Beyond that, at this point we're just going in circles repeating the same points to little effect. I think it's time to agree to disagree.

TomTom said...

The entire notion of the Senate being able, in its unilateral majoritarian wisdom, to decide who may be seated and who may not, is extremely troubling. What would keep a >60 Senator bloc from denying a seat to anyone, anyone not of that bloc?
For that reason alone, Burris should be seated. Whether the Dems take him in or not is irrelevant.