Burris Appointment (formerly misnamed Pardon Revocation)

[William Funk]

But Burris was not elected.  Burris was appointed by the Governor.  There
can be no question of judging returns or an election.
Bill Funk
Lewis & Clark Law School

> -----Original Message-----
> From: Josh Chafetz [mailto:josh-chafetz at lawschool.cornell.edu]
> Sent: Tuesday, December 30, 2008 3:36 PM
> To: Chris SCHROEDER; William Funk; CONLAWPROF at lists.ucla.edu
> Subject: RE: Pardon Revocation
> 
> Each house has the authority to judge, not just the qualifications, but
> also the elections and returns of its own members.  The Powell Court
> suggested (at footnote 42) that a house's judging of one of these things
> might well be nonjusticiable.  That is, the courts might be open to hear
> the claim that the house was not judging of qualifications at all but
> rather adding qualifications (that is Powell), but they might not be open
> to hear the claim that the house judged qualifications incorrectly.
> 
> So, assume the Senate claims that it is judging the election of Burris.
> In judging that election, it is well within the Senate's rights to take
> electoral fraud into consideration.  Presumably, this is the case even if
> there is only one "voter."  So, if the Senate were to judge that Burris
> was not duly elected because the election was characterized by widespread
> voter fraud--i.e., the only voter had been bought--then the courts might
> well find it to be nonjusticiable.  And I think they would be right to do
> so.
> 
> Of course, it could be nonjusticiable and still wrong.  If they had
> evidence that Burris did, in fact, bribe Blagojevich to appoint him to the
> seat, I think it would be nonjusticiable, constitutional, and correct.
> Absent such evidence, I think it would be nonjusticiable,
unconstitutional,
> and wrong.
> 
> Josh
> ----------------------------
> Josh Chafetz
> Assistant Professor of Law
> Cornell Law School
> 238 Myron Taylor Hall
> Ithaca, NY  14853
> 607-255-1698
> josh-chafetz at lawschool.cornell.edu
> 
> ________________________________________
> From: conlawprof-bounces at lists.ucla.edu [conlawprof-
> bounces at lists.ucla.edu] On Behalf Of Chris SCHROEDER
> [SCHROEDER at law.duke.edu]
> Sent: Tuesday, December 30, 2008 5:40 PM
> To: William Funk; CONLAWPROF at lists.ucla.edu
> Subject: RE: Pardon Revocation
> 
> My inclination would be the same as yours, Bill.  That assumes that Powell
> v. McCormack applies with equal force to an appointed Senator as it does
> to a "duly-elected" House member.  If it does, then the Senate can only
> judge whether or not Burris meets the constitutionally explicit
> qualifications for the Senate, which he seems to do.  Were I arguing the
> case for the Senate, I would harp on his appointed status, because all of
> the pre and post ratification history that Warren relies upon in Powell
> speaks of "elected" representatives.
> 
> Chris
> 
> >>> "William Funk" <funk at lclark.edu> 12/30/2008 4:26 PM >>>
> Does anyone see a way that the Senate can block the seating of Roland
> Burris
> to Obama's Senate seat?  I don't.
> Bill Funk
> Lewis & Clark Law School
> 
> > -----Original Message-----
> > From: conlawprof-bounces at lists.ucla.edu [mailto:conlawprof-
> > bounces at lists.ucla.edu] On Behalf Of guayiya
> > Sent: Thursday, December 25, 2008 9:50 AM
> > Cc: CONLAWPROF at lists.ucla.edu
> > Subject: Pardon Revocation
> >
> > Happy Holidays to all.
> >
> > Re today's news:
> > Doesn't revoking a pardon constitute double jeopardy?
> > The White House argument that the pardon is not effective until a
> > warrant of pardon is delivered seems inconsistent with the holding in
> > Marbury.
> > But would this matter be justiciable?
> >
> > Daniel Hoffman
> 
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