December 30, 2008

Blago Names Burris

Illinois Governor Rod Blagojevic is truly the gift that keeps on giving.

What has he given us today? An eminently qualified African-American nominee to replace Barack Obama in the US Senate -- and a full-blown constitutional crisis on both the state and federal level.

Gov. Rod Blagojevich is expected today to name former Illinois Atty. Gen. Roland Burris to replace President-elect Barack Obama in the U.S. Senate…

Shortly after Obama’s Nov. 4 victory, Burris made known his interest in an appointment to the Senate but was never seriously considered, according to Blagojevich insiders. But in the days following Blagojevich’s arrest, and despite questions over the taint of a Senate appointment, Burris stepped up his efforts to win the governor’s support.

Though he is 71, Burris has said that Obama’s replacement should be able to win re-election and he has noted that despite a string of primary losses in races ranging from Chicago mayor to governor and U.S. senator, he’s never lost to a Republican…

U.S. Senate Majority Leader Harry Reid of Nevada previously warned Blagojevich, following the governor’s Dec. 9 arrest, that Senate Democrats would not seat any appointment the two-term Democratic governor made. Reid’s warning was contained in a letter signed by all 50 sitting Democratic senators, including the No. 2 Democrat in Senate leadership, Sen. Dick Durbin of Illinois.

Now I lived the better part of two decades in Illinois. I remember Roland Burris as a public official and a candidate for office. He always struck me as a fundamentally decent man, well-qualified and eminently worthy of public trust. And even though I voted against him at every opportunity, I always believed him to be the sort of Democrat I could live with if my Republican candidate lost. And I will say this loud and clear -- given the failure of the Illinois legislature to act to strip Blagojevic of his power to appoint Barack Obama's successor, I fully support his decision to appoint Burris.

Of course, this action by the corrupt governor has given rise to several interesting responses.

Consider this response from Senate Majority Leader Harry Reid, with Illinois Senator Dick Durbin giving him a measure of cover.

Senate Democrats said Tuesday they would refuse to seat the man Illinois Gov. Rod Blagojevich has picked to succeed President-elect Barack Obama, saying that the taint of scandal would follow the new senator to Washington.

"Anyone appointed by Gov. Blagojevich cannot be an effective representative of the people of Illinois and, as we have said, will not be seated by the Democratic Caucus," Senate Majority Leader Harry Reid of Nevada and his deputy, Sen. Dick Durbin of Illinois, said in a statement.

Well, the Senate DOES have the right to judge the qualifications of its members -- but there could be a constitutional problem with this declaration. More on that in a bit.

And then there is this statement from Illinois Secretary of State Jesse White.

The appointment was instantly rejected by Illinois Secretary of State Jesse White who said he would refuse to certify Burris' selection....

His argument amounts to a claim that the current legal cloud under which Blagojevic finds himself makes the appointment illegitimate. However, does that apply to all appointments, or just to this one -- and on what basis does he make and enforce that judgment. Another constitutional crisis, this on the state level.

And wherein lie the constitutional crises?

Well, let's start with the state constitutional crisis. After all, state law REQUIRES the Secretary of State to perform the following acts, and the state constitution (Article V, Section 16) obliges him to carry out the duties prescribe by this law.

1. To countersign and affix the seal of state to all commissions required by law to be issued by the Governor.

2. To make a register of all appointments by the Governor, specifying the person appointed, the office conferred, the date of the appointment, the date when bond or oath is taken and the date filed. If Senate confirmation is required, the date of the confirmation shall be included in the register.

There is nothing optional or discretionary in this. His failure to do so will lead to state court action to require White to do his job. That means lots of drama on another front in Blago-gate.

And the federal constitutional crisis? I'll let Eugene Volokh explain this one.

If there's some evidence that Burris's appointment was indeed the result of a bribe or some illegal maneuvering, then indeed the Senate can refuse to seat him. But if there is no such evidence, then for reasons I noted earlier, I think their position is legally unsustainable, given the Supreme Court's Powell v. McCormack precedent.

Given that Burris meets all the requirements set by the US Constitution to hold a Senate seat, any failure to seat him will almost certainly be struck down -- just as any attempt to toss ted Stevens would have failed if the Senate had tried to expel him following his reelection after a bribery conviction. Of course, that will require another nasty court fight.

Now as a Republican, I see a great political upside for my party if White refuses to certify or Senate Democrats refuse to seat Burris. The ensuing court battles as the Democrats try to keep a black man out of the Senate seat previous held by the only black member of the US Senate (by then the first black president) would be entertaining -- and would likely serve to drive a wedge between some elements of the black community and the Democrat Party. That could only serve to help turn Illinois (and perhaps some other states) from blue to red.

But to be honest, I don't want it to come to that. I actually agree with Bobby Rush on this score -- words you may never see again.

"This is a good decision," Rush told reporters. "Roland Burris is worthy. He has not, in 20 years of public service, had one iota of taint on his record as a public servant. He is an esteemed member of this state and this community."

"I would ask you not to hang or lynch the appointee as you try to casitgate the appointor," Rush added. "Separate, if you will, the appointee from the appointor. Roland Burris is worthy."

Let's be honest -- at 71, Roland Burris is unlikely to be a Senator for more than two years. He will certainly face challengers in the Democrat primary in 2010, and the Blagojevic connection will not serve him well. The GOP will put up a strong candidate as well, who will have a better than even chance to win. In other words, he is a sear-warmer -- and one whose service to the people of Illinois would be capped by this honor, and who has the stature to rise above the current scandal. He should be accepted by all parties as the ideal compromise appointee.

UPDATE: Obama says not to seat Burris -- and here I thought he knew enough constitutional law to know that the Senate really has no choice.

Others Blogging: Top of the Ticket, Ace (twice), Malkin, Hot Air (twice), Gateway Pundit, Sister Toldjah, Bench Memos, Concurring Opinions, Patterico, The Glittering Eye, Don Surber

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