January 06, 2009
The following op-ed, “City of Cold Shoulders,” by HLS Visiting Professor Walter Dellinger, appeared in the Jan. 6, 2009, edition of The New York Times.
The scene of Roland W. Burris being escorted from the Senate by the Capitol police on Tuesday could be only the first act of an unpleasant and distracting drama. But in the days since Mr. Burris’s appointment to Illinois’s junior Senate seat was announced by that state’s scandal-tainted governor, Rod Blagojevich, it has become clear that the Senate’s power to reject Mr. Burris is, at best, highly debatable. The wisest course for the Senate is to end the dispute by accepting the appointment.
A similar situation arose in 1967, when the House of Representatives refused to seat Adam Clayton Powell Jr., the outspoken congressman from Harlem accused of personal misconduct involving public funds. I was clerking for Justice Hugo Black two years later when he joined in the Supreme Court decision that the House lacked the power to deal with Powell’s conduct by refusing to seat him.
In Justice Black’s view, one of the worst abuses of power in England resulted from parliamentary majorities wrongly refusing to seat dissident legislators. That experience makes me very wary about the Senate’s barring a person from taking a seat unless its authority to do so is clear. Here it is not.
The Constitution’s text is simple enough: “Each house shall be the judge of the elections, returns and qualifications of its own members.” Since no one disputes that Mr. Burris, a former Illinois attorney general, possesses the constitutional qualifications of age, residency and citizenship, the remaining issue is whether the Senate can adjudge Mr. Burris not to have been properly appointed. Although federal prosecutors are seeking a corruption indictment of Mr. Blagojevich, he is in fact still the governor. The charges that he sought bribes to appoint certain candidates to the Senate do not automatically render illegal other official acts of his office like signing laws or pardoning criminals. And because there is no evidence that a bribe was solicited from, or proffered by, Mr. Burris, his appointment is presumptively lawful.
Nor do the other arguments against Mr. Burris’s appointment hold up. The contention by the Democratic leadership that Mr. Burris can be denied a seat because the Illinois secretary of state refuses to sign his appointment papers is without merit — it would confer upon secretaries of state absolute veto power over governors’ appointments.
Postponing the decision until Mr. Blagojevich’s removal and replacement by the lieutenant governor is not a clean solution either. Mr. Burris will argue that if his appointment was valid, Illinois law entitles him to the seat until the 2010 election. In his view, there would be no vacancy for the new governor to fill. Having two rivals, one appointed by each governor, disputing who is the rightful senator might be the worst possible outcome.
In the end, the difficult question is whether the Senate can exclude a qualified person who did nothing wrong to obtain his appointment, and whose selection is itself without taint, because the overall appointment process was alleged to have been tarred by corruption. This is not an easy question. I can understand how senators might conclude that the result of such a distorted process is legally invalid. But on balance the right answer is to seat the appointee.
The case for rejecting Mr. Burris is made especially troubling by the cavalier way in which some have suggested that the Senate can reject an appointee for any reason it chooses. That is wrong. The Senate’s power to decide is only the power to decide correctly under the law, not the power to decide however the majority of the Senate prefers to decide.
The Supreme Court decision in the Powell case did leave open the possibility that a Congressional decision finding that a member was not properly elected — in this case, appointed — might be a “political question” immune from judicial review.
But that some reasons for denying Mr. Burris this seat might not be subject to review by the courts means that the Senate should take more care, not less. As we emerge from eight years of extravagant executive claims of unreviewable authority, Congress should be especially scrupulous about having a solid legal basis for controversial actions.
Whether or not it was wise for the governor to make an appointment, no one doubts that it would be lawful for the Senate to accept Mr. Burris. It is only a decision to exclude Mr. Burris that would lead to a continuing dispute about whether the Senate had the authority to reject the choice of a sitting governor.
The Senate can avoid this constitutional quagmire entirely by agreeing to seat Mr. Burris, a respected public servant no one has accused of any wrongdoing.
Walter Dellinger, a lawyer, was the head of the Justice Department’s Office of Legal Counsel from 1993 to 1996.