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).
Posted 9:37 AM by Mark Tushnet [link]