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Friday, January 9, 2009

Illinois Supreme Court Denies Burris Request - Does Burris Win By Losing?

The Illinois Supreme Court has denied the request of Roland Burris for a writ of mandamus ordering Secretary of State Jesse White to sign and seal the Certificate of Appointment issued by Gov. Rod Blagojevich. While seemingly a loss for Burris, the findings of the Court actually support Burris' position that he is in fact the Senator from Illinois. The Court held that White had no legal obligation to sign such a Certificate since Burris already was the lawful appointee even without a signed and sealed Certificate.
Because gubernatorial appointments only require issuance of an actual commission when the governing law so provides and because no provision of law makes issuance of a commission necessary for the validity of a gubernatorial appointee to a United States Senate vacancy, no commission was required by law to effectuate the appointment of Mr. Burris to the United States Senate.

The Illinois Supreme Court took a very dim view of the argument advanced by Harry Reid and others that a certification is needed under Illinois law or the Rules of the U.S. Senate. In other words, Roland Burris is the lawful appointee, and nothing more is needed:

As noted in the Attorney General opinion cited above, the only purpose a signature and seal could serve in this case is an evidentiary one. It would confirm that the appointment had, in fact, been made. At this point, however, there is no question at all that the Governor did, in fact, make the appointment. If there was ever any question about that on the part of the United States Senate, it should have been removed when the Governor’s envoy appeared at the Senate with a copy of the certificate of appointment in hand.

In their pleadings, Petitioners suggest that the United States Senate has taken the view that the Governor’s signed, hand-delivered certificate of appointment is insufficient to meet the requirements of the Senate’s own internal rules. We note, however, that nothing in the published rules of the Senate, including Rule II, appears to require that Senate appointments made by state executives pursuant to the seventeenth amendment must be signed and sealed by the state’s secretary of state.

Moreover, no explanation has been given as to how any rule of the Senate, whether it be formal or merely a matter of tradition, could supercede the authority to fill vacancies conferred on the states by the federal constitution.

While I disagree with the Court's analysis on the Illinois statute in question, the Court undoubtedly was correct that Burris is the lawful appointee regardless of whether the certification was signed. The result puts Harry Reid in a difficult position. Here is what a wrote just a day ago:

U.S. Senate Majority Leader Harry Reid has embarrassed himself by his frequent changes of position on the Burris appointment, all of which are carefully laid out in a Chicago Tribune editorial today and in my prior posts.

Reid also has lied about his newly found softer stance, announcing at yesterday's press conference that his meeting with Burris was a key factor, and that once White certifies the appointment, seating Burris is possible. In fact, a phone call from Obama pressuring Reid to change his position was the true reason Reid has softened his stance. So Reid now is lying about his own lies.

At this point, Reid's face-saving escape hatch consists of having the Illinois Supreme Court order White to certify the Certificate of Appointment. While the Illinois Supreme Court should do what is right, there is a part of me that hopes they do what is wrong.

If the Illinois Supreme Court does not order White to certify the Burris appointment, Reid will have no exit strategy.With no state certification (and none is needed), Reid will have to confront the U.S. Constitution, and the issue of Reid's own power. Reid either will have to further humiliate himself, or risk a court battle which Reid likely will lose. Either way, this country would be better off politically, so that Reid understands that he is Senate Majority Leader, not Emperor.

Now we will see if Harry Reid's ego, or the U.S. Constitution, prevails.


  1. What I don't get is that if Illinois law says the secretary "shall" sign, how could the court not order the writ of mandamus. I don't see how Burris's status of already being the legal senator from Illinois obviating the need for the writ to be issued for the secretary to perform what he is supposed to do under the law.

    This ruling in effect makes the secretary's signature discretionary on the part of the secretary; I don't think that is what the law intends.

  2. I think what the court was saying is that the document appointing Burris is not a "commission" as that document is used in the statute, so the Secretary of State did not have to sign it. The Certificate of Appointment, signed by Blagojevich alone, was all that was needed to appoint Burris.