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Monday, January 12, 2009

Senate Lawyers Paper-Over Reid and Durbin's Burris Problem

It has just been announced that Senate lawyers have agreed that Roland Burris' paperwork is in order, and he should be seated. If you followed the commentary on my post The Burris-Murkowski Double Standard, you would have seen this coming. There is no way that Reid and Durbin could maintain the charade that Burris was not entitled to be seated because of faulty "paperwork." That position was politically and legally untenable.

Recall how this all started. Soon after U.S. Attorney Patrick Fitzgerald announced that Illinois Gov. Rod Blagojevich was guilty (without so much as an indictment much less trial) of trying to sell Barack Obama's open Senate seat, Democratic leaders stated that they never, ever, under no circumstances, come hell or high water, would seat anyone, regardless of who it was, appointed by Blagojevich. Senate Majority Leader Harry Reid, and second-in-command Richard "Dick" Durbin of Illinois, led the charge.

When Blagojevich appointed Burris to the seat nonetheless, Reid and Durbin repeated their vow not to seat Burris. When Burris' supporters played the race card, Reid and Durbin waivered, and said the problem was one of paperwork. Burris needed to get the Illinois Secretary of State to co-sign the Certificate of Appointment. Reid and Durbin took this position because Jesse White, the Illinois Secretary of State, had announced that he would not co-sign the Certificate. This paperwork problem -- the lack of a co-signature by a Secretary of State -- supposedly ran afoul of Senate Rule II, which has a suggested form of certification which requires signature by the Governor and Secretary of State.

Burris then went to the Illinois Supreme Court for an order that White co-sign the Certification. The Court ruled in favor of White, but on grounds that actually supported Burris. 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.

The Illinois Supreme Court decision presented an enormous problem, because the Court held that under state law -- which governs whether an appointment or election is valid -- Burris was the Senator, regardless of White's refusal to sign. Nonetheless, Reid and Durbin continued to rely on the lack of signature as the basis not to seat Burris, relying on Senate Rule II.

This position was untenable, since three states do not have Secretaries of State, and three other states call the position "Secretary of the Commonwealth." Under the Reid-Durbin literal reading of Senate Rule II, a total of six states would be incapable of appointing a Senator because there was no "Secretary of State" to sign the paperwork in the form recommended by Senate Rule II. As this blog pointed out, Alaska Senator Lisa Murkowski was appointed by her father, Frank Murkowski, without signature by any "Secretary of State." (A commenter to that post, who appears to be very close to the situation, stated that the Murkowski certification was signed by the Alaska Lt. Governor, who is the chief election officer, but I haven't seen the actual Murkowski certificate). The prospect of making an exception for Murkowski but not Burris could not last.

Moreover, Senate Rule II does not by its terms purport to set forth the lack of co-signature by a Secretary of State as a barrier to seating a legally appointed Senator. Reid and Durbin raised a Senate record-keeping rule to the level of a substantive qualification. This created a potential constitutional crisis over the power of the Senate to deny seating to a Senator lawfully appointed who met all constitutional qualifications.

The Reid-Durbin paperwork defense was bound to fail, and it has. As soon as we see the explanation by the Senate lawyers, this post will be updated.

UPDATE: Here is the statement released by the Reid and Durbin. The statement is devoid of any truth, other than to convey the decision. If you just landed from Mars, you would not know of all the prior categorical statements not to seat a Blagojevich appointee and not to seat Burris without Jesse White's signature on a Senate Rule II form (which never happened). Why not just admit you were wrong, instead of insulting the intelligence of everyone who has been following this? And then to suggest that objections from Republicans may be the problem -- I guess this is what we are in for the next two years, if not longer. Anyway, here is the statement:

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.

We have spoken to Mr. Burris to let him know that he is now the Senator-designate from Illinois and as such, will be accorded all the rights and privileges of a Senator-elect.

Accordingly, barring objections from Senate Republicans, we expect Senator-designee Burris to be sworn in and formally seated later this week. We are working with him and the office of the Vice President to determine the date and time of the swearing-in.

As we had outlined to Mr. Burris, a path needed to be followed that respects the rules of the Senate. We committed to Mr. Burris that once those requirements were satisfied, we would be able to proceed. We are pleased that everything is now in order, we congratulate Senator-designee Burris on his appointment and we look forward to working with him in the 111th Congress. [Italics added.]

1 comment:

  1. Dick Durbin does flips better than the Jesse White Tumblers, soon to be seen nationwide at the Inaugural Parade.