Burris Appointment (formerly misnamed Pardon Revocation)

Wed Dec 31 13:25:31 PST 2008

I'm curious if those who find this an "easy case" with regard to Senate rejection of Sen. Designee-Burris's taking his seat would agree that the Senate should also have rejected the scandalous appointment of Lisa Murkowski by her father Frank upon his move to the governorship of our extraordinarily odd 50th state.  I certainly don't see why that appointment is self-evidently less corrupt and offensive to anyone who believes in a "Republican Form of Government" than the Burris ostensible appointment.  (Perhaps the answer is that the Senate should have rejecteded daughter Lisa and Burris as well.  If that happens, I assume that the Senate will also consider very carefully whether Caroline Kennedy, if named to succeed Sen. Clinton, meets a sufficient "purity of motive" criterion.)  I suppose what I'm rally saying, though I'm trying to think this through, is that the Senate should bite its collective lip and seat the 74-year-old former Attorney General and that Democrats should seek the strongest possible candidate for the 2010 election, who presumably will not be Sen. Burris.

sandy

________________________________

From: conlawprof-bounces at lists.ucla.edu on behalf of John Parry
Sent: Wed 12/31/2008 11:07 AM
To: Theodore Ruger
Cc: Heyman, Steve; CONLAWPROF at lists.ucla.edu
Subject: RE: Burris Appointment (formerly misnamed Pardon Revocation)

I wonder what list members think the probable course of events will be (as
opposed to what we all think the law requires, permits, accomodates, etc.).

Reid seems to have committed himself, as has, apparently, the President-elect --
is there any indication that either of them has given meaningful consideration
to the legal issues, precedents, etc. that we are debating in any detail?  Is
there any reason why they should?  In addition, the Supreme Court that decided
Powell no longer exists, and the factual context is different.

Put differently, I'm assuming the political actors will do their politics, and
the law will follow along.  For example, has Burris stated that he will only
fill out the term so that Illinois voters ultimately can have an election to
fill the seat?  If he does so state, does anyone think that would be a good
basis for a political settlement?

Best to all,

John Parry

Quoting Theodore Ruger <truger at law.upenn.edu>:

> I agree with the argument offered by Professor Heyman (and Harry Reid) that
> the Senate's only authority here is to assess whether the Burris appointment
> is "tainted by fraud" in the same manner that it might inquire into election
> fraud.  But to the extent that the Senate's definition of "taint" ranges
> beyond the narrow circumstances of the actual Burris choice (i.e. did Burris
> pay a bribe?) and instead examines the general conduct of Gov. B over the
> past weeks/months, such grounds for refusing to seat Burris would in my view
> be overbroad and unconstitutional (though probably nonjusticiable, as others
> have noted).
>
> For those who would argue that there is a broader democratic legitimacy
> justification for the Senate's refusing to seat any appointee chosen by the
> thoroghly corrupt Gov B, note that Illinois voters reelected him in 2006
> despite public knowledge of Fitzgerald's investigation and other serious
> fraud allegations against his office.
>
> Best,
>
> Ted
>
> ________________________________
>
> From: conlawprof-bounces at lists.ucla.edu on behalf of Heyman, Steve
> Sent: Wed 12/31/2008 11:21 AM
> To: Malla Pollack; 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)
>
>
>
> 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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