Burris Appointment (formerly misnamed Pardon Revocation)
Chris SCHROEDER
SCHROEDER at law.duke.edu
Wed Dec 31 08:42:48 PST 2008
There may well be a consensus among us that the Senate can review the appointment for fraud or corruption. The argument that this is what the Senate actually is doing would be a great deal stronger if Senator Reid had waited until he knew some corruption-showing facts relevant to the specific appointment of Burris before saying the Senate would reject it. The presence of an exposed corruption scheme with respect to the potential appointment of someone else hardly establishes that corruption tainted the appointment that was actually made. The evidence against Blago justifies the Senate taking a harder look at such an appointment than they ordinarily might, but I think they need some evidence specific to this appointment before they can interfere with the selection system that Illinois has enacted. Otherwise it has the feel of verdict first, trial later.
Chris
>>> "Heyman, Steve" <Sheyman at kentlaw.edu> 12/31/2008 11:21 AM >>>
I think the best argument for the Senate's authority here is that it has a right to determine whether the Governor's appointment of Burris is tainted by corruption. This morning's Chicago Tribune quotes Harry Reid's spokesman, Jim Manley, as saying:
"We are not making a judgment about the qualifications of the appointee, but about whether [the] appointment itself was tainted by fraud. . . . We believe we are entitled to do that. This is like judging the integrity of an election, free from fraud or corruption."
I assume that the House and Senate can, and on a number of occasions have, looked into whether a particular election was the result of fraud or corruption. (Today's NY Times says, e.g., that in 1947 the Senate did not seat Theodore Bilbo of MS in view of accusations voter suppression and corruption). If the Senate can do that in the case of an election, it should be able to do it in the case of a gubernatorial appointment. Given that Blagojevich already faces federal charges for conspiring to sell this seat, it would clearly be reasonable for the Senate to refuse to seat him pending an inquiry into whether the appointment is vitiated by corruption. That, and any subsequent court challenge, could end up taking a good deal of time -- it might not even be resolved by the time that the term expires in 2010. In the meantime, Illinois would have only one Senator, and the Democrats' majority would be down by a vote. So while the Senate has the power to at least delay Burris's seating for some time, from a political point of view the Democrats might be better off quickly looking into whether there was any corruption in Burris's appointment, and then declaring that they had no choice but to seat him.
Steve
Steven J. Heyman
Professor of Law
Chicago-Kent College of Law
565 W. Adam St.
Chicago, IL 60661
(312) 906-5228
sheyman at kentlaw.edu
-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu on behalf of Malla Pollack
Sent: Wed 12/31/2008 9:49 AM
To: Mae Kuykendall; Chris SCHROEDER; Mark Tushnet; Josh Chafetz; William Funk; CONLAWPROF at lists.ucla.edu; Scott Gerber
Subject: Re: Burris Appointment (formerly misnamed Pardon Revocation)
This problem raises a major federalism issue. Whether Gov. B is legally entitled to (or required to) fulfill the
duties of governor is an issue of Illinois law -- not federal law. No one else claims to be governor of Illinois. No crisis etc gives Congress a reason to intervene before the State of Illinois figures out B's fate.
Much as I dislike Gov B's actions, Congress' refusal to seat Gov B's appointee would be quite similar to the Supreme Court's insistence in intervening in Bush v. Gore.
Representative government (especially with multiple layers of government) is messy. To keep it alive, everyone needs to be willing to put up with the messiness.
Malla Pollack
________________________________
From: Mae Kuykendall <mae.kuykendall at law.msu.edu>
To: Chris SCHROEDER <SCHROEDER at law.duke.edu>; Mark Tushnet <mtushnet at law.harvard.edu>; Josh Chafetz <josh-chafetz at lawschool.cornell.edu>; William Funk <funk at lclark.edu>; CONLAWPROF at lists.ucla.edu; Scott Gerber <s-gerber at onu.edu>
Sent: Wednesday, December 31, 2008 9:36:44 AM
Subject: RE: Burris Appointment (formerly misnamed Pardon Revocation)
The right answer to the constitutional authority may be arguable, but
what of a view of political, or constitutional, propriety? Isn't there
a pretty good argument that the governor hasn't been convicted of
anything (innocent until proven guilty, not until proven tasteless) and
the process should be allowed to operate as contemplated? It seems to
me that the harm of allowing a prosecutor to disable the governor from
discharging his duties while in office, simply by announcing charges, is
more serious than the harm of letting Burris serve. (I don't question
Fitzgerald's motives.) It's fine if the legislature impeaches and
removes the governor, because that follows a prescribed process, but a
mere outcry for political positioning should not control the normal
processes of government (perhaps that's a bit funny--I mean the basic
pre-set constitutionally blessed ground rules for filling Senate seats).
And isn't the motive of Reid, etc. purely political in one of the less
flattering meanings of the term, i.e., to protect appearances for the
Dem. Party? And the motive of the Republicans is to have an election
for a vacancy?
I suppose one could say that the reading of the constitution that
permits the Senate to deny the seat is also a prescribed process, but
it's a debatable one without much in the way of procedural traditions
that lend it regularity. There seem to be a lot of serious
constitutional norms that point toward the governor's appointing
authority as the better answer for orderly government. When politicians
quickly agree they'd like to improvise in fulfilling a basic function
affecting legitimacy, it is probably all to the good to stick with the
standard process. To add to the reasons, refusing to seat him would
most likely leave the seat unfilled for some period, which creates a
harm to regularity.
Mae Kuykendall
>>> "Gerber, Scott" <s-gerber at onu.edu> 12/31/2008 9:47 AM >>>
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 we!
ll-found
ed) [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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