Burris Appointment (formerly misnamed Pardon Revocation)

Wed Dec 31 06:47:31 PST 2008

I'm pleased to see that the list has taken up this important question.  Mark's analysis is insightful, as always, but I agree with those who feel that the Senate can't refuse to seat Burris and that a court would so rule.  I think the governor is correct:  the Constitution requires him to appoint the replacement and he has done it.  (Of course I'm not defending the governor's other actions, if true.)

Happy New Year,
Scott

*****************************
Scott Douglas Gerber
Ella & Ernest Fisher Chair in Law
Professor of Law
Ohio Northern University
Ada, OH 45810
419-772-2219
http://www.law.onu.edu/faculty_staff/faculty_profiles/scottgerber.html

________________________________

From: conlawprof-bounces at lists.ucla.edu on behalf of Mark Tushnet
Sent: Wed 12/31/2008 9:23 AM
To: William Funk; Josh Chafetz; Chris SCHROEDER; CONLAWPROF at lists.ucla.edu
Subject: RE: Burris Appointment (formerly misnamed Pardon Revocation)

I wonder -- genuinely -- about this.  Without knowing *anything* whatever about the relevant history (whether of original meaning or subsequent practice), I began to think along these lines:  There's no election (except in the metaphorical sense Josh Cafetz uses,and I think that term is displaced by the provision for "making" appointments to fill vacancies), and Burris clearly meets the qualifications as defined by Powell v. McCormack.  But what about "returns"?  The original Constitution contemplated temporary appointments by state "executive" to "vacancies" (modified by the 17th Amendment, but not, as I read it, in any respect relevant to the argument I'm going to sketch).  In the case of a vacancy, the "return" would be, I would think, the document indicating who the governor had appointed (pursuant to authority given him/her by the state legislature, per the 17th amendment).  Is the Senate limited in any way when it "judges" the "returns"?  Presumably it can't judge that a return is invalid on any ground whatever, because that would undermine Powell's holding.  Presumably as well the Senate could say that the person who showed up is not the person named in the return.  Presumably, too, were there two people claiming to be the state's executive, the Senate could judge which one "really" was the executive (an example that might arise were Burris to show up, Blago to be impeached before the Senate did anything about Burris, and the new "executive" -- I gather, the current Lieutenant Governor -- were to name someone else).  Could the Senate say that the return is invalid because it did not conform to state law (were the Secretary of State to decline to sign the relevant document, even if experts in state law asserted that his signature was unnecessary to make the document effective as a matter of state law)?  Could it judge a return invalid simply because it was suspicious of the process by which the named person was chosen (without coming to a conclusive judgment -- how? -- that those suspicions were well-founded) [this is how I would formulate the position Josh Chafetz takes -- not about the "election" but about the "return"]?  Because it made an independent judgment that the state's executive should not be allowed to make the appointment because of questions about the executive unrelated to the appointment?  As I indicated, these are genuine questions.

FWIW, my inclination is to say that the Powell footnote about the nonjusticiability of decisions genuinely directed at determining whether a person met the qualifications rests on a judgment that we can expect the political process to operate responsibly when confined to those questions (even though we can imagine hypotheticals indicating irresponsible action).  I would generalize that (I've done so, more or less, relying in part on a reading of Walter Nixon v. United States, in an article in the North Carolina Law Review) to say that the Senate has full power to judge returns as long as it confines itself by adopting some law-like standard that limits its discretion in ways that generate political accountability (and that, were it to adopt some law-like standard -- either formally, for example, in a report from the relevant committee recommending that the Senate not accept the return naming Burris, or informally [I'm inclined to think] -- the question of whether it acted in a manner consistent with the Constitution should be nonjusticiable). 

Mark Tushnet
William Nelson Cromwell Professor of Law
Harvard Law School
Areeda 223
Cambridge, MA  02138

ph:  617-496-4451 (office); 202-374-9571 (mobile)

-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu on behalf of William Funk
Sent: Tue 12/30/2008 6:49 PM
To: 'Josh Chafetz'; 'Chris SCHROEDER'; CONLAWPROF at lists.ucla.edu
Subject: RE: Burris Appointment (formerly misnamed Pardon Revocation)

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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