Senate Democratic leaders today cleared the way for Roland Burris to be seated as a senator from Illinois … As late as midday Friday, Senate officials were insisting that Mr. Burris lacked the necessary credentials – under Senate rules – because the Illinois secretary of state, citing the tainted appointment, refused to sign the governor’s appointment papers.
After Mr. Burris’s lawyers hand-carried to the Senate today an additional document bearing a state seal, an affirmation of the appointment and a mass-produced signature of the secretary of state, Jesse White, Senate leaders Harry Reid and Dick Durbin bestowed the senator-designate title on Mr. Burris in a joint release:
The Secretary of the Senate has determined that the new credentials presented today on behalf of Mr. Burris now satisfy Senate Rules and validate his appointment to the vacant Illinois Senate seat. In addition, as we requested, Mr. Burris has provided sworn testimony before the Illinois House Committee on Impeachment regarding the circumstances of his appointment….
… The office of Minority Leader Mitch McConnell, Republican of Kentucky, indicated today that he stood by his statement on Friday, that as long as Mr. Burris’s paperwork was in order, he would become the junior senator from Illinois.
Thank heavens that’s over with (the Republicans, of course, will not object, since they probably think that having Burris in the seat for two years is their best shot at taking the seat in 2010). I love the fact that it’s not even Jesse White’s actual signature — it’s an auto-pen (I assume that’s what they mean by “mass-produced signature”).
But this stuff continues to boggle my mind:
Even after the Illinois Supreme Court ruled last Friday that the appointment was valid under state law, and that Mr. White’s signature wasn’t necessary to uphold it, Senate leaders insisted their arcane rules – the pertinent one in this instance dates from the 19th century – required both the signatures of a governor and secretary of state.
No, no, no. The Constitution empowers the state legislatures to set up the procedure by which their chief executive makes the appointment. And according to the Illinois Supreme Court, in Illinois the Governor makes that appointment without any involvement of the Secretary of State. Senate Rules simply cannot trump the Constitution, as much as Dick Durbin, Harry Reid, and others woolly-headed Senators may wish it to be otherwise.
Hmmmmmmm!
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are these people democrats, or bush rats? i mean seriously. or is this just their way of welcoming obama with a little gift they think he might like, since they know he laughs at the 14th amendment? in just a week they can all cherry pick the law with non-partisan unity. i’m touched.
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p>/ rant just warming up /
US Constitution, Article I, Section 5: “Each House shall be the judge of the elections, returns and qualifications of its own members …”
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p>Courts have ruled that this power supercedes state law. For example, in the CA-50 special election in the summer of 2006, House Republican leaders swore in Brian Bilbray while votes were still being counted, before the state of California had certified an election result, and before Bilbray’s opponent Francine Busby had a chance to contest and seek a full recount. A court dismissed Busby’s lawsuit on the basis of Article I Section 5, saying that since the House had already judged the election and sworn in Bilbray, the court had no further jurisdiction.
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p>Whatever the Constitution empowers states to set up processes for, it empowers the Senate to decide what constitutes a duly elected Senator. The Senate’s opinion on whether someone has been properly elected or appointed supercedes the state’s.
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p>Yes, I think this is bad. But it is, unfortunately, established constitutional law at the moment, AFAIK.
it’s far from “established.” Most con law profs that I know of thought the Senate was way off-base on the Burris business (lots of links in previous posts on this; too tired to dig them up now). Akhil Amar is the only exception of which I’m aware (maybe Mark Tushnet too, though he was half-hearted about it), and shortly after Amar’s Slate article went up I saw numerous profs posting that they weren’t convinced. (I wasn’t either.)
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p>I’d lay good money that, if Burris had had to litigate the question whether he was duly appointed absent the SoS’s signature, he’d have won. Thank goodness the Senate had the sense to avoid litigation.