Wednesday, December 31, 2008

The Burris appointment -- another view

Mark Tushnet

Following up on Jack's post, here's the substance of something I sent to a listserv.  It offers an analysis compatible with Jack's though a bit more textual in focus, and a bit more tentative in its conclusions than even Jack's tentative conclusions.

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 a metaphorical sense,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 the 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 well-founded)? 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? Note that, with respect to the last question in particular, the fact that this is an appointment to fill a vacancy weakens -- although it does not eliminate -- the concern in Powell v. McCormack that the people and not the Senate should make the decision about who should represent them.  As I indicated, these are genuine questions.

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).


But, what would the law-like standard be? That the party making the appointment has been credibly accused (but no more than that, at present) of doing other bad acts? What if Governor Spitzer had appointed a senator after his rendezvous with Miss Dupre? Could the Senate refuse to seat that appointee?

Partly I'm not sure what "law-like" means. Does it mean only procedurally regular? Or does it mean in accordance with the principles of "rule of law," which proscribe the presumption of guilt, guilt by association, judgments based solely on reputation, etc.?

As I understand it, the "returns" are the voting results that are received from individual counties or other local unites within a state. The document that reflects the state's determination of the victor is known as the "credentials," not the return. This document is considered (at least in House practice) as prima facie evidence of election, but it is not conclusive.

If Burris shows up without the proper credentials (as may happen if the Secretary of State refuses to certify his appointment), the Senate might decline to seat him immediately on that basis, but this would be a mere technicality. Once the Senate satisfies itself that Burris was in fact appointed by Blagojevich, the absence of credentials would not be a valid ground to refuse to seat him.

I realize that the following story is not legally relevant to whether Burris is appointed, but it is morally relevant, and is of far greater importance than any legal issue. If this story (at is true, then Burris is an evil man in the most fundamental sense of the word: he tried to kill an innocent person in the hope of advancing his political career:

Public fury over the governor’s alleged misconduct has masked the once lively debate over Burris' decision to continue to prosecute – over the objections of one of his top prosecutors – the wrong man for a high-profile murder case.

While state attorney general in 1992, Burris aggressively sought the death penalty for Rolando Cruz, who twice was convicted of raping and murdering a 10-year-old girl in the Chicago suburb of Naperville. The crime took place in 1983.

But by 1992, another man had confessed to the crime, and Burris’ own deputy attorney general was pleading with Burris to drop the case, then on appeal before the Illinois Supreme Court.

Burris refused. He was running for governor.

"Anybody who understood this case wouldn’t have voted for Burris," Rob Warden, executive director of the Center on Wrongful Convictions, told ProPublica. Indeed, Burris lost that race, and three other attempts to become governor.

Burris’ role in the Cruz case was "indefensible and in defiance of common sense and common decency," Warden said. "There was obvious evidence that [Cruz] was innocent."

Deputy attorney general Mary Brigid Kenney agreed, and eventually resigned rather than continue to prosecute Cruz. . . .

"What I took away was that [Burris] wasn’t going to do anything to seem soft on crime," Kenney said. "He didn’t have the guts."

In her resignation letter, Kenney claimed Burris had "seen fit to ignore the evidence in this case."

"I cannot sit idly by as this office continues to pursue the unjust prosecution of Rolando Cruz," she wrote. "I realized that I was being asked to help execute an innocent man."

Burris' response at the time: "It is not for me to place my judgment over a jury, regardless of what I think." . . .

State prosecutors carried on with the prosecution, even after DNA evidence in 1995 excluded Cruz as the victim's rapist and linked somebody else—sex offender Brian Dugan–to the crime.

Eventually, prosecutors’ case hit a wall. The Illinois Supreme Court reversed Cruz's conviction and granted him a third trial. (The court declared that the trial judge in the case had improperly excluded Dugan’s confession, and thus compromised Cruz's defense.) In the new trial, Cruz was acquitted. . . .

Not sure how relevant this is, but Federalist No. 53 mentions this clause. Madison is arguing for biennial, as opposed to annual, elections for House members. He says that one problem with frequent (i.e., annual) elections is "that spurious elections cannot be investigated and annulled in time for the decision to have its due effect. If a return can be obtained, no matter by what unlawful means, the irregular member, who takes his seat of course, is sure of holding it a sufficient time to answer his purposes. Hence a very pernicious encouragement is given to the use of unlawful means for obtaining irregular returns. Were elections for the federal legislature to be annual, this practice might become a very serious abuse, particularly in the more distant states. Each house is, as it necessarily must be, the judge of the elections, qualifications and returns of its members, and whatever improvements may be suggested by experience for simplifying and accelerating the process in disputed cases. So great a portion of a year would unavoidably elapse, before an illegitimate member could be dispossessed of his seat, that the prospect of such an event, would be little check to unfair and illicit means of obtaining a seat."

I think the very next paragraph has some relevance:

"Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member."

They can, quite plainly, seat him momentarilly, and then expell him for any reason whatsoever.

OTOH, he's a black Democrat, and it's a Democratically dominated Senate. I think the notion that they'd have the guts to refuse to seat, or expell, a black Democratic Senator, to replace a black Democratic Senator, is ludicris. Rod might be a crook, but he knows his party.

Professor Amar over at Slate co-wrote an interesting article on this issue, including as to the meaning of "return."

FWIW, I think he is correct. It isn't a "qualification" matter, so Powell is not quite to point. And, the 17A makes appointments to be respected as elections, if the state legislature determines if that is the call.

A related matter is relevant. There was a very close election in the 1970s, but the Senate called for a new election, even though a state body determined one person won. The other person won the special election.

random monkey's quote does help suggest that "spurious elections" was a concern here, including those obtained by fraud.

Was the Senate right to do this? I don't know the details, but that is separate from its power to do so. Like a jury verdict, the decision might be wrong, but it is theirs to make.

[This might counter Scott L's point in the last thread. He seems to be saying that the appointment was not corrupt, so the Senate has no power to overrule it. But, like an "obvious" verdict -- OJ etc -- that isn't our call.]

The "law-like" standard is a judgment call; and I sort of think it isn't a judiciable one, surely under Walter Nixon v. U.S.

As to seating him and then expelling him, they might have the power to do that, but that surely does imply personal wrongdoing. The higher standard alone. The other way seems the better way, if possible.

Hopefully, there will be an election set up soon enough to make this whole matter somewhat moot.

as to Henry's discussion, a legal appointment would include appointment of immoral individuals

A related matter is relevant. There was a very close election in the 1970s, but the Senate called for a new election, even though a state body determined one person won. The other person won the special election...

Was the Senate right to do this? I don't know the details, but that is separate from its power to do so. Like a jury verdict, the decision might be wrong, but it is theirs to make.

But don't there have to be some limits? What if a Republican majority decided, merely on the basis of some conspiracy theory they read on the internet, that a Democratic Senator elected by a five-point margin was elected under dubious circumstances, that the computerized voting machines might have secretly been hacked into, even though there was no real evidence for that? What if Blagojevich had never been accused of anything, but it was common knowledge that he was corrupt and that there was a reasonable possibility that anyone whom he appointed might have bought him off? Surely that can't be enough. But that's actually a stronger reason to reject his appointment than any reason the Senate does have. Does anyone honestly believe that there's a significant possibility that Blagojevich was paid to appoint Burris or promised anything in return for his appointing Burris? Surely he wouldn't try selling the seat twice.

Tray asked, "But don't there have to be some limits?"

Take a look at chapters 2, 8 & 9 of Deschler's Precedents (which are available on the GPO's website; just Google it). Although that deals more with the House, it does have some citations to Senate cases. And it's really kind of shocking, what they suggest about congressional discretion.

"Surely he wouldn't try selling the seat twice."

Because he showed such great judgment this far?

Many juries declared people innocent on fairly flimsy grounds, showing a de facto jury nullification.

There are principled lines to be drawn, ones I question were crossed here, but like many other things, it seems to be up to the judgment of the individuals in question.

Actually, there is a federal statutory requirement that a temporary appointment be certified by the state secretary of state (2 USC sec. 1b, see also Senate Rule II). Lacking this certification, I think Burris could be excluded.

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