Only one way for Burris not to be seated
He's been duly appointed, and fairly soon, he'll have to be certified in the absence of intervening events. Once certified, the Senate could theoretically stall and investigate, but it won't, as racial pressure and embarassment will further build.
All I can see is that a new governor takes office (soon) after resignation or impechment/removal, the new governor rescinds the appointment and makes a new one (instead of calling elections which could yield a Republican). The second appointment is quickly certified, and the new Senator is seated. Expect him to black, and it could even be Burris himself appointed once again. Even rescinding the appointment will result in some racial outcry, but perhaps less so during the historic, inaugural season, if that's the timing.
Very quick action is indeed the key: a court may force the secretary to certify Burris before the above steps are taken. (Republicans *really* enjoying this!)
Can a new governor rescind an appointment? That sounds like a five hundred page legal brief.
January 6, 2009 9:14 AM | Reply | Permalink
Hi, dickday.
Well, you know which answer to your question Burris's counsel will offer! :) In truth I think the "new governor" aspect is legally vacuous; I believe the heart of your legal issue is "Can an Illinois governor rescind a Senatorial appointment which has not yet been certified by the Illinois Secretary of State?" Instinctively, I think the answer is yes, unless there is something peculiar about the Illinois statutes. Just my take.
If this every should get to our result-driven Supreme Court, of course (which it easily could given the Federal aspects and moreover the eagerness of overreachers like Scalia to oafishly wrap his greasy hands around things that don't concern him), we can expect the usual, dreary, 5-4 decision in favor of the Republican position, i.e. in this case, Burris-the-embarassment-must-be-seated (and hung around Obama's neck). And it's wonderfully convenient to have it freighted with racial divisiveness as well.
January 6, 2009 12:47 PM | Reply | Permalink
Lets just assume the Ill Statute says something like:
The Governor shall appoint a ......to fill the vacant U.S. Senate seat and UPON CERTIFICATION of said appointment by the Secretary of State, ....
Now we have a court challenge by the nominee to get a judicial writ of mandamus, ordering the Secretary of State to certify. Which he would do. (95%)
Then you might have a situation where the gov has been removed from office before the writ is issued.
That is the kind of legal mumbo jumbo that could screw up everything for a long time unless the State Supreme Court just stepped in, heard arguments and finished the entire process. That kind of thing has been done in rare cases.
In the mean time, I suppose the US Senate by its own rules could say, no certification, no seat.
January 6, 2009 1:26 PM | Reply | Permalink
Yeah, you're right about the writ, of course, and again, I don't know how serious the legislature is about removing this usurper and how soon they plan to do it/finish it. If it's something that they're only at maybe doing in coming weeks (not, for example, this week), then Burris is looking pretty good. If the legislature wants to slow down that mandamus, they need to impeach now (like, in the morning), probably using language to allege (correctly or incorrectly) that they believe the appointment violated his authority/was made in bad faith/some such, and that on that basis they would welcome a new governor rescining and making a fresh appointment. That's the sort of stuff that might keep a judge's pen in his desk drawer for at least a while. Might.
January 6, 2009 8:13 PM | Reply | Permalink