DiFi and The Legality of the Burris Appointment

The old adage of "if at first you don't succeed, try, try, try again" might serve Roland Burris well in his attempt to become the junior Senator from Illinois. He may actually need only to try but once for it seems the unity of the Democrats in blocking the appointment has collapsed. Dianne Feinstein, the senior Senator from California, is urging the Senate to settle the matter and by settle she means sitting Burris.

"If you don't seat Mr. Burris, it has ramifications for gubernatorial appointments all over America," the California senator said. "Mr. Burris is a senior, experienced politician. He has been attorney general, he has been controller, and he is very well-respected. I am hopeful that this will be settled."

Senator Feinstein who chairs the Senate Rules Committee, which judges the credentials of senators argues that the governor has the power under the law to make the appointment. The matter, in her mind, seems settled.  

I am not a lawyer so I have no idea the legality of all this but as a political observer I can only say this entire episode is such a tragic comedy. If the appointment is, in fact, legal then there isn't any point in any further discussions that only serve to distract from the important business facing the nation. So is this appointment legal or not? To answer this question should not consume the nation.

More from MSNBC.

Tags: Illinois Senate Seat, Senator Dianne Feinstein (all tags)



Re: DiFi and The Legality

Let me try to simplify this because I know most folks aren't lawyers and aren't really interested in a 3-volume dissertation on Marbury v. Madison.

Professor Laurence Tribe is one of the foremost constitutional law experts in the country.  Some might know him as one of Obama's professors from law school.  His interpretation of the Constitution is that the Senate doesn't have to seat Burris.

Dean Erwin Chemerinsky is another titan of constitutional law.   His interpretation of the Constitution is that the Senate has to seat Burris.

So look, don't let anyone tell you that there is an obvious answer to this question, that the rule of law demands such-and-such, or that the side you disagree with is shredding the Constitution.  It is a good-faith legal dispute that has no clear answer unless and until the Supreme Court weighs in, which it may or may not do.

I thought Big Tent Democrat had a very cogent post on this point:

Not seating Burris, pursuant to the Article 1, Section 5 of the Constitution is the opposite of ignoring the Constitution. It may be that the interpretation of the Constitution forwarded by Senate Democrats is some day found to be incorrect by the Supreme Court. I doubt that day will come. But clearly the Senate is not ignoring the Constitution here. We all can have our judgment on whether it is wise for the Senate to do this, but it is absurd to argue that because the Senate disagrees with your judgment that it is acting unconstitutionally.

This is exactly right.  Harry Reid may be right, he may be wrong (and no one will mistake him for a constitutional scholar), but he's making a perfectly valid interpretation of the Constitution.  This isn't like John Yoo inventing some crazy legal opinion in order to justify lawless behavior by the Bush Administration.  Laurence Tribe is far from the only constitutional expert to say the Senate Democrats have the right to exclude Burris pursuant to the Constitution, and the argument is legitimate.  Whether it's right or wrong remains a matter of opinion.

by Steve M 2009-01-06 04:36PM | 0 recs
Re: DiFi and The Legality

I read the LA Times piece earlier today. It was unequivocal. I just don't want to see this become a sideshow, or better put, one more than it already it is. If Reid is going to lose in the end, better to do it now than risk injuring his reputation as Majority Leader.

I'll go read the Tribe piece now. Thanks.

by Charles Lemos 2009-01-06 04:55PM | 0 recs
Re: DiFi and The Legality

Too late. he's already hurt his reputation.

One scholar says we MUST seat Burris. The "opposing viewpoint" says we MAY seat him.

Either way, we SHOULD seat him. That much is obvious. He's duly appointed, he is not tied to Blago's scandal, and we will need his vote on crucial issues to break filibusters.

More to the point, the time to argue that bad executives can't make appointments was when Bush was making appointments. Having rubber stamped Bush appointments that make Blago's handling of the Senate vacancy look like Eagle Scout behavior, they just look silly complaining about Burris.

Seat him now, and wait for the voters to decide whether to keep him as soon as there's an election.

Reid has Stockholm syndrome. Someone ought to teach him that you play hardball agains the REPUBLICANS, not your own side.

by admiralnaismith 2009-01-06 07:21PM | 0 recs
Re: DiFi and The Legality

Reid has Stockholm syndrome. Someone ought to teach him that you play hardball agains the REPUBLICANS, not your own side.

how true.

by Charles Lemos 2009-01-06 07:35PM | 0 recs
Re: DiFi and The Legality

I'm not a lawyer, I'm hoping you can explain this.  I've read the Tribe article, but I guess I don't understand it.  He says:

The fact that he is indisputably "qualified" in the constitutional sense has no bearing on the authority of the Senate under Article I, Section 5 to serve as the sole "Judge of the Elections"--and, by extension, the temporary appointments--of would-be members.

But, earlier, he states that Article I, Section 5 does not grant "any power to deny membership through the discretionary addition of ideological or other 'qualifications' to those carefully laid out in the Constitution itself".

It seems to me he's making two claims here.  How is denying any candidate appointed by Blago not the discretionary addition of "ideological or other qualifications"?

I also find unconvincing his argument that barring Burris is OK because the Senate decided to bar whomever was appointed, regardless of who they were.  That is, they had no way of knowing who would be affected by the rule, so it was not crafted to stop Burris specifically.  Does that mean it would be OK for a Republican-controlled Senate to refuse to seat a senator from Massachusetts as long as they announced their intention prior to the filing of candidates?  

Tribe may be right.  However, I certainly hope he is not.  His interpretation seems to be against the spirit, if not the letter, of a constitution designed to protect the democratic rights of a free people.

by sneakers563 2009-01-06 06:47PM | 0 recs
Re: DiFi and The Legality

The idea is that the Senate's power to keep Burris out is the same as its power to refuse to seat the winner of a fraudulent election.  If one candidate says "I won the election" and another candidate says "no, he cheated, I'm the real winner," there is little doubt that the Senate gets to make the final decision as to who wins.

How this principle applies to an appointment, as opposed to an election, is less clear.  But Tribe's theory is that the Senate is empowered to rule on defects in the process, even if they can't impose additional qualifications on the candidate himself.

by Steve M 2009-01-06 07:34PM | 0 recs
Re: DiFi and The Legality

Thanks.  That makes sense.  I wonder, though, whether anyone really disputes that.  In that case they're either judging the outcome based on already existing qualifications, or making a judgment based on an investigation.  Neither of those seem to apply here as I haven't seen any evidence that Burris bought the seat, and "not appointed by a governor under investigation" seems a lot like an additional qualification added specifically to disqualify Blago.  I understand it's arguable, though.

Frankly, I wish they would seat him provisionally pending the outcome of an investigation.  

by sneakers563 2009-01-07 05:34AM | 0 recs
I think it's legal

I think everyone is arguing that the appt. is legal, once the Sec. of State of IL finally signs off on it.

At that point, the discussion is whether the Senate has the right to simply not seat him. Personally, I don't think the Senate has that right barring any real corruption in the selection. Plus, it sets horrible precedent if the Senate can just deny the seating of Senators it doesn't like.

by existenz 2009-01-06 04:49PM | 0 recs
Re: DiFi and The Legality of the Burris Appointmen

I really don't like her. I'm watching Rachel Maddow now and she spent some time chewing out Jay Rockefeller and Diane Feinstein for shitting the bed as the chairs of the intelligence committee, specifically over her annoyance over not being consulted in the Panetta pick.

The chutzpah of this senator is nauseating. She voted to confirm Porter Goss for chrissakes.

Please, save the outrage for something that matters. Like, I don't know, maybe torture?

by dannybauder 2009-01-06 04:51PM | 0 recs
So if Porter Goss was acceptable to her

then how on earth could she possibly get off saying Burris is NOT?

by admiralnaismith 2009-01-06 07:25PM | 0 recs
Re: DiFi and The Legality of the Burris

Gallup just polled this situation... the majority of the public supports Reid NOT seating Burris...  Blogo is poison, and too many liberals just want to "go along" thinking that the problem will "just go away".  Ha!  The media and the Republicans are just waiting to pounce on us the moment we "embrace" this Senator who gleefully took a corrupted seat.

I don't care what "legal" arguments Burris has.. this is politics and Democrats are better off leaving him hanging for awhile at least... he took an appointment for a tainted seat... he should have expected this.

by LordMike 2009-01-06 05:07PM | 0 recs
Re: DiFi and The Legality of the Burris Appointmen

You know, the most important aspect of being a Senator is working for the state that you supposedly represent.  There's no way that Burris can do this effectively because he'll go down for eternity as Blago's guy and a symbol of the very worst corruption.  

As a resident and voter in Illinois, I demand better than this old party hack; I certainly don't want anyone slimy enough to accept an appointment from Rod representing me.  STFU, Sen. Feinstein, and serve your constituents in Cali.

by gravypatrol 2009-01-06 05:15PM | 0 recs
Re: DiFi and The Legality of the

The appointment was legal.

IF they didn't want Blago to have it, they should have done the legislation for a special election.

they did not.

Either we are a country of laws again after 8 years, or we are not.

If you don't like Burris, don't vote for him in the 2010 Primary.

by rikyrah 2009-01-06 05:39PM | 0 recs
Ship has Sailed

Blago, whatever "cloud" he is under, is still the lawfully elected Governor of Illinois, who has not been charged with anything, much less convicted. I think they need a better reason than somebody's notion of tainting if they are going to overturn the appointment.

The real problem here is the failure of the Illinois legislature to do its duty and get Blago impeached before he pulled this crap. Impeachment is not a criminal proceeding and doesn't need criminal level standards of proof/procedure. The point of impeachment is to protect the citizenry from criminals in positions of authority, by removing them. This squirrely/spiteful appointment is a prime example of what a criminal Governor will do if unrestrained. The legislature's failure to impeach in a timely fashion is what led directly to this situation.

by jimBOB 2009-01-06 05:54PM | 0 recs
Re: Ship has Sailed

Well, there's a clear difference between "generally corrupt" and "tried to sell the Senate seat in question."  A generally corrupt governor's appointment can be dealt with at election time.  But the fact that there is a not unreasonable possibility that Burris paid for this seat seems, to me, to change the game.

by auronrenouille 2009-01-06 06:22PM | 0 recs
Don't you think you have the burden of proof here?

There's no evidence of a quid pro quo here. None at all.

Blago threw the Democrats a lifeline by selecting a clean Senator, and Reid the idiot kicked the lifeline away, illegally.

by admiralnaismith 2009-01-06 07:23PM | 0 recs
Re: Don't you think you have the burden of proof h

What, are you Blago's press secretary?  Don't have anything better to do than troll the blogs?

There's no evidence of a quid pro quo here. None at all.

Except the fact that he's on tape saying he wants to sell the seat?  "F'n golden," remember?

Blago threw the Democrats a lifeline by selecting a clean Senator

He selected an African-American in order to make this a racial issue.  That's not the act of a governor, that's the act of an evil person.

and Reid the idiot kicked the lifeline away, illegally.

As cited many times, this is a largely untested area.  I have no clue how the Court would rule on this.  Anyone who is certain how they're going to rule is either lying or a fool.  I think Reid's argument is sold.  Burris's isn't without merit either.  But this is hardly clear-cut.

by auronrenouille 2009-01-06 08:38PM | 0 recs
Re: Don't you think you have the burden of proof h

And by the way, to answer your topic title, no, I don't think Senator Reid is seeking to conduct a criminal trial here (I certainly hope not, given general principles of separation of powers), so, no, I think he is entirely justified in stating, with merit, that any of Blago's appointments is inherently suspect and that they will have to prove otherwise.  If DoJ wants to charge Burris with a crime, then we can talk about burden of proof.  Try not to mix your legal arguments, it makes you look amateurish.

by auronrenouille 2009-01-06 08:43PM | 0 recs
Re: Ship has Sailed

I don't think it's up to the U.S. Senate to adjudicate questions about Blago's fitness for office; that's clearly a question for the Illinois legislature. Absent an official pronouncement from the relevant authority (i.e. an impeachment), it's improper for the U.S. Senate to bigfoot its way into a matter of state government, such as deciding with no evidence or due process that a lawful appointment by a lawful Governor is invalid.

BTW, I don't see this as Blago throwing a lifeline; it's patently a spiteful appointment meant to cause trouble. Which it is successfully doing. But that doesn't trump the fact that the Senate doesn't have legal authority to stop the appointment. Such legal authority rested with the Illinois legislature, which failed to exercise said authority in a timely fashion, resulting in this dilemma.

by jimBOB 2009-01-07 05:48AM | 0 recs
An important distinction.

1) The act of appointing Burris was plainly legal.  He is governor until he isn't.  Basically everyone agrees with this part of the analysis.

It gets messier from there.

2) White refusing to certify Burris's appointment doesn't have a clear affect, but I would say that a majority of legal minds looking at this seem to think that his refusal is ineffective, to use the legal term, or more appropriately, symbolic (which baffles me personally as to why "certification" is even a part of the system, but whatever).

3) There really haven't been enough legal challenges regarding the Senate's potential refusal to seat Burris, especially since the words in question have never been tested as it relates to appointments.  The answer to that question lies deep in the minds of the current Supreme Court, and I think that either answer is reasonable.  It is difficult to tell because the original Constitutional formulation didn't anticipate popular election of Senators, and as someone else above said, while the Senate may eventually be forced to seat Burris, they have reasonable Constitutional backing to refuse; either choice is reasonable.

by auronrenouille 2009-01-06 06:20PM | 0 recs


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