Note to Reid, Durbin, Quinn and Marshall: No Ticking Clock for Burris
Like too many journos, Josh seems to have fallen for the idea that somehow, someway, Harry Reid, Dick Durbin, IL Lt. Gov. Pat Quinn and other P.O'd Illinois Dems can "run out the clock" on Roland Burris and simply appoint a new Illinois Senator once (make that if and when) Rod Blagojevich is convicted. (See last para of Burris article on TPM's Front Page.)
They can't.
A reminder once again that the Illinois Supreme Court was very deliberate in their ruling and opinion on the writ of mandamus Roland Burris sought last week. Mr. Burris is the junior Senator from Illinois. Two actions by the Governor and the Illinois Secretary of State inexorably made that fact: on December 30, 2008 the Governor, according to statute and within his authority appointed Burris to the seat. On December 31, 2008, the Secretary of State registered the appointment of Burris as Senator, again according to statute and within his authority.
That Jessie White opted not to sign his name to the document(s) given to Burris to give to the Senate is, in the Court's view irrelevant. (I must stress again that people need to read the entire 10 page opinion.)
Pundits, including Josh, along with Reid, Durbin and others who think they can merely oust Blagojevich and install a new Governor (ostensibly Pat Quinn) have all failed to answer this key question: How will they remove from office the current junior Senator?
While they all scream that Blago shouldn't have appointed anyone, they fail grasp the central reality that Blago, regardless of his status -- being investigated, being arrested, being indicted (not yet), being impeached -- still holds the SOLE authority in the state of Illinois to conduct the business of the office of the Governor and that includes making appointments.
The state's Attorney General tried and failed to remove Blago on the basis that he was impaired. Like it or not, Blago has made a legal and binding appointment. The legality of that appointment was confirmed by the state's Supreme Court.
Many pundits have tried to suggest that the legal principle of "fruit of the tainted tree" applies. It doesn't. And was confirmed again by the Supreme Court. Blago's appointment of Burris is legal.
So, in order to remove Burris, there needs to be some compelling circumstance INDEPENDENT of Blago that proves Burris is either unqualified or unfit. Constitutionally, the requirements to serve as US Senator are being a US citizen and having attained the age of 30 at the time swearing in. Mr. Burris is a US citizen and at this writing is 71 years old.
Is Mr. Burris unfit to serve? No. He is in good health, appears to have all of his faculties intact and is physically capable of going to Washington and attending the sessions of the Senate. Has Mr. Burris committed any act (such as a "high crime or misdemeanor") that would disqualify him from service? No, he has not.
Without SEPARATELY removing Mr. Burris from office for INDEPENDENT wrongdoing on Mr. Burris' part, there is no path to appointing someone new. Illinois Democrats know that is the case, as do Harry Reid and Dick Durbin. Unless and until Mr. Burris does something that warrants his removal, he is the Senator. Period.
It is not illegal for someone to accept an appointment (or pardon, or commission, etc.) made by an elected official who has been arrested, indicted or impeached. He or she cannot be removed for accepting the appointment. That Mr. Burris might not win an election in 2010 is irrelevant to the legality of his appointment.
Mr. Burris has accepted the appointment made by the Governor. The Secretary of State has duly registered the appointment as required by law. The Illinois Supreme Court has confirmed the legality of appointment even as they denied the specifics of the writ of mandamus Mr Burris sought. They also identified the best means within the laws of state of Illinois to comply with the Senate's picayune request for a signature, by telling Mr. Burris and his team to request a copy of the registration made by Mr. White of the Governor's appointment of Mr. Burris, to which the Secretary of State must affix his signature and state's seal.
The Senate cannot hold its rules and traditions above and outside of the federal Constitution and the laws of the state of Illinois.
The only ticking clock now is the countdown to the 2010 mid-term elections.
Its over. Let Burris in. We need as many dems as we can get. I do not understand what Durbin is thinking.
January 11, 2009 1:43 PM | Reply | Permalink
Me neither.
January 11, 2009 2:04 PM | Reply | Permalink
Durbin is thinking about holding the seat in 2012. Burris could cost the democrats this seat an many others at the state level.
Blago will be gone in a month. If dems get a clean appointment and impeach Blago, they get to say they are better at keeping their side honest than the GOP was with Ryan. if the democrats get saddled with Burris, the GOP can still run against Blago and paint the democrats as unable to stop their members from engaging in corruption - even when it's been exposed for all to see.
Why exactly do we NEED every democrat immediately? Isn't holding the seat (and state) long-term more important than the next couple of weeks? You realize that the untainted person who will follow Burris will also be a democrat ... right?
Economic stimulus (the big legislation on the table right now) has decent bipartisan support - and they will only need 2 GOP votes MAX to pass it. If you think Burris is the right guy for the job, fine. But there is no logic to saying we NEED him seated as quickly as possible simply because he's a democrat.
January 11, 2009 4:37 PM | Reply | Permalink
A few things.
1) That seat is the one won by Carol Moseley-Braun in 1992, by Peter Fitzgerald in 1998 and by Barack Obama in 2004. Hence, it is next up for grabs in 2010, not 2012.
2) Having Burris in the seat until 2010 is unlikely to hurt, unless he becomes involved in some big scandal while a Senator. It does not appear that he's part of Pay-Rod - at least, Patrick Fitzgerald isn't targeting him. Also, those who have spoken out against his appointment have stressed that neither Burris nor his record as an Illinois politician is the problem.
3) Burris is not likely to survive the 2010 primary, if he even decides to run in it. (Any advisor telling him he can win the nomination is likely committing political malpractice.) Whoever *does* win the nomination will be able to say they're Blago-free anyway, as Pay-Rod will definitely be a big part of that election (the governor's seat is up in 2010 too).
4) You bring up an excellent point about speedily seating Burris. It would be nice to have the full complement of Democratic senators on board. However, even if Burris and Al Franken don't get seated right away, the Dems will still be at 57 votes, and there are a number of moderate GOP senators (for example, Susan Collins and Olympia Snowe) who are likely to come along on a good chunk of Obama legislation.
Having said that, I would expect that Obama doesn't want this particular soap opera being discussed throughout his inauguration. And the Senate wants no part of a Burris lawsuit, given that the law appears to be on his side. I suspect he'll be a Senator by this time next week.
January 11, 2009 5:18 PM | Reply | Permalink
Yeah .. I was picturing 2 years - 2010.
If Durbin had made a different set of statements, I'd tend to agree with you that they were losing the taste for a fight. I think they are going to make him visit the USSC at least once.
There is this drip-drip of information (Blago's wife's new job, the thousands of documents Burris collected on Blago's opponenet in 2006, the false statements about contact, etc.) undermining the "squeaky clean" meme. I think they are trying the collegiate path first before they actually dig in.
Time will tell.
January 11, 2009 5:37 PM | Reply | Permalink
I know, but I am careful sometimes, too careful. But it is two years not two weeks.
Such is life. And I am certainly no expert on Illinois law.
January 11, 2009 6:51 PM | Reply | Permalink
The US Constitution seems to give the US Senate SOLE authority for it's membership. The various and diverse requirements of individual states can not change or reduce the rules and procedures of the senate - otherwise a state who didn't like the rules could just pass local laws and usurp the constitutional authority of the US Senate.
The state Supreme Court can ONLY speak to the issues within the state. So now the question becomes can the senate make it's own rules for seating by requiring a set of procedures that must be followed. In this case a signed document. I don't know if a certification that the document is a genuine copy will hold up as a signature authorizing the appointment.
That will need to go to the USSC. The democrats can slow walk it.
Once that is resolved, the issue will become if the entire Senate Body can reject a NON-ELECTED (no voters' loss issues) appointee for questions of ethics. I don't see the senate voting in favor of seating him (it's fair to say statements from Durbin will carry a lot of water here). Burris made representations about contact with Blago (both verbally and in a sworn affidavit) that he later contradicted in sworn testimony. That gave the senate democrats an ace-in-the-hole. Again, the democrats can slow walk their responses and scheduling the vote.
So then Burris is back to the USSC to try and force the Senate to seat him. I think this one will have less chance of prevailing than the first visit - but isn't a slam dunk for his opposition. As I've stated elsewhere McCormick isn't the only precedent relating to these issues.
If during any of these procedures Blago is removed, Quinn makes a different appointment and White signs it; the senate can act on it and seat the new appointee. If that happens, Burris will have a whole new set of things he must argue and take yet another case to the USSC while the other appointee is sitting in the seat and doing the business of Illinois as the provisional Senator. I don't believe he can possibly clear that hurdle.
That seems like a ticking clock to me. I'm not saying Burris will never be seated. But if he is, it will be after more rounds of political gamesmanship. Tick Tock.
January 11, 2009 5:29 PM | Reply | Permalink
the legal issue no one addresses is "Does a new governor have the legal right to rescind Burris' appointment and to appoint a new senator if Burris is not seated by the time the new governor is installed?" Should be an easy quesion for anyone in IL with knowledge of election law. Yeah, or nay?
January 11, 2009 5:35 PM | Reply | Permalink
The IL SC opinion said Burris has everything he needs from Illinois's legal stand point but that doesn't necessarily apply to the senate's own rules and customs however picayune they may be. The authority for the senate to run it's own affairs, set it's own rules and adhere to it's own customs are given to it by the US constitution. The senate can refuse to seat any senator even if they are duly elected by the people of their state let alone appointed by a tainted governor. A tainted governor whose wife got a job from one of Burris's associates in September right around the time Burris expressed interest in the seat in question.
In short you're wrong Jade, Reid and Durbin can stall long enough for Blago to be removed from office and Quinn installed.
I do not know if Quinn can rescind the appointment and appoint someone else under these circumstances. My guess is the senate's lawyers are busy researching that question right now. If by their estimate that's a case they'd lose Burris will be most likely be confirmed soon.
January 11, 2009 7:05 PM | Reply | Permalink
This is where politics combines with the rule of law and chaos ensues Mark. I am hoping for the best which in this case is seating Burris. If some people are that mad about it, work for someone else in the primaries.
January 11, 2009 10:05 PM | Reply | Permalink
It isn't about the rule of law as envisioned by the IL Supreme Court dickday, it's about the senate's rules/customs and their prerogative to make and enforce them. The IL SC doesn't have jurisdiction to rule on US senate rules/customs no matter how well or poorly reasoned their opinion. They can try, but that doesn't mean Reid and Durbin have to listen to them.
They got the Illinois part of the decision right. They rejected Burris's request that they force the IL SoS to sign his appointment doc. The rest of it is basically "You might try this and see if they'll buy it".
January 11, 2009 11:29 PM | Reply | Permalink