Balkinization: Tribe on Burris and the Temporal Factor

Tribe on Burris and the Temporal Factor

Over at Forbes, Larry Tribe argues that Powell v. McCormack is distinguishable and that the Senate may refuse to seat Roland Burris. His argument is similar to that offered by Akhil Amar and Josh Chafetz, Mark Tushnet, and me. He concludes with the following:

But that the Senate's early December decision to exclude any Blagojevich appointee reflected nothing about the particular person he appointed cuts for, not against, leaving the matter to the judicially unreviewable judgment of the Senate itself.

For the danger of invoking doubts about the process of election or appointment, as a pretext for excluding someone that a Senate majority finds objectionable, is minimized when the decision to exclude is made in advance of any individual's appointment, and thus under the classical philosopher's veil of ignorance about whose ox might be gored.

Needless to say, whether the Senate has the authority to refuse to seat Burris is only the beginning of the matter, not the end of it. It merely sets up the background political entitlement in what is likely to be a complicated process of bargaining and playing for time. And even if the Senate lacks the authority to refuse to seat Burris, the debate over whether it does (and the need for Burris to bring litigation to establish his right) also gives the Senate and the Illinois legislature room for maneuver.

The Senate may ultimately seat Burris, but for the moment, it probably wants to delay decision by referring the matter to a committee to consider whether or not there was anything problematic in the circumstances of the appointment (Many commentators doubt that there is anything problematic with the appointment, but it's worth recalling that only a few weeks back the Governor was caught on tape boasting he would sell the seat and certainly wouldn't let it go without getting something valuable for it. Even if there is no present evidence of misconduct in this appointment, the Senate might insist that it deserves a little time to look a little closer into the circumstances).

While that investigation is ongoing, Illinois may impeach Blagojevich and a new governor may make another appointment, which the Senate will probably readily accept. Or Blagojevich may strike a deal that procures his speedy exit. Conversely, if the Senate delays too long, or allows the controversy to fester, it may look bad and/or impede the Democrats' legislative agenda. That is especially the case if the Democrats decide at some point that they want to seat Al Franken.

We do not know the ultimate course of events. The point here, rather, is that the constitutional question-- whether the Senate must seat Burris-- must be understood against these temporal and political factors.

Posted 10:01 AM by JB [link]

Comments:

A crucial element will be the willingness AND ability of the Senate to assert its prerogative to determine what this patch of the Constitutional text means. If the Senate sees itself as having the authority to judge the qualifications of its own members, and it sees itself as the final word on this, why need it pay attention to the Supreme Court's decision in Powell v. McCormack?

Assume the Senate refuses to seat Burris. Assume Burris sues in court. Assume it quickly gets reviewed by SCOTUS. And assume SCOTUS rules in favor of Burris (does it matter if it is 5-4, or 9-0?). The question then is whether the Senate will assert its prerogative (from its point of view) on the qualifications clause, AND whether it is willing to stand up for it. In this case it appears that both Democrats and Republicans may well join together in refusing to seat Burris. It is embarrassing for Democrats, but it would be even more embarrassing for Republicans to argue that Burris should be seated: rather their political stance seems to require asserting that Blagojevich (a Democrat) is so corrupt that it taints any of his appointees.

Under this scenario, the collective action problem becomes interesting. Despite the partisan conflict within the Senate, there is the possibility of the Senate being united on this issue. But then the question becomes the extent to which the Senate feels obliged to comply with judgments of the Supreme Court.

I see the potential for a departmentalism conflict; but if that is the case, I also expect the Senate to be as spineless as it has ever been recently (think DTA, MCA, FISA reauthorization). Which would at the end of the day strengthen the judiciary's authority.

# posted by

Chausovsky : 10:30 AM

"While that investigation is ongoing, Illinois may impeach Blagojevich and a new governor may make another appointment, which the Senate will probably readily accept."

So an appointment made by one governor may be withdrawn by a successor governor? Might this be a precedent for the "pardon" power?

In any event, let's welcome Larry Tribe to the dance on the head of the constitutional pin. There's plenty of room for more constitutional scholars. This is a hellova lot more fun than Heller - and very few persons may get hurt.

# posted by

Shag from Brookline : 10:42 AM

Tribe (and you and all the others) are still tap dancing, rather insolently, around the utterly unambiguous text of I-5-1 and A17.

At least have the intellectual honesty to state, openly and notoriously, what your analytical flowchart really is:

Step 1. Dislike the plain text.
Step 2. Disregard the plain text.
Step 3. Congratulate yourself.

The rest is all sound and fury.

# posted by

KipEsquire : 11:31 AM

Tribe’s view makes no sense to me. If a court construes the Senate’s action as judging not the appointment itself, but the “appointer,” that will make it much less likely that the action will be unreviewable. The argument against justiciability is that the Constitution gives the Senate the power to judge appointments similar to the power to judge elections, and that the refusal to seat Burris is an exercise of that power. But there is no argument that the Constitution gives the Senate the power to decide that particular Governors are too corrupt to make valid appointments, any more than it could decide that particular states are too corrupt to hold valid elections.

# posted by

mls : 11:52 AM

The simplest solution is to impeach and remove Blagojevich and for the next governor to reappoint Burris. Nobody seems to object to Burris himself, and his subsequent reappointment and seating by the Senate bypasses all litigation.

# posted by

HowardGilbert : 11:57 AM

I would modify Howard Gilbert's suggestion as follows. The simplest solution is for Burris to announce that if Blagojevich is impeached (and removed), he will resign and allow the new governor to appoint anyone (including Burris) he wishes. The Senate could then seat Burris with the knowledge that, if Burris were to break his word, it could expel him with a two-thirds vote.

# posted by

mls : 12:06 PM

Tribe, Amar, and maybe you seem to be arguing that, even though this appointment probably wasn't corrupt, the process in general has been too tainted for any Blago appointee to be credible. The trouble with that argument to me is that, once Blago's impeached, the Lieutenant Governor's appointment is ultimately a product of the same process. Just as Blago was forced to tab a guy who wasn't one of the original candidates for the spot because they've all been tainted by Fitzgerald's complaint, the Lieutenant Governor, Quinn, would be loath to pick one of the original candidates himself - he, too, would most likely appoint a caretaker of Burris's ilk. But Reid isn't refusing to seat a Quinn appointee, just Blago's, even though the only taint that attaches to Burris is the same counterfactual, "if not for the corruption of the original process, he wouldn't have been picked" taint that would attach to any Quinn appointment. Now, maybe you want to bite the bullet and say that this whole process is so irredeemably corrupted that there simply must be a special election, but even that election would be tainted by the original appointment process; Jackson Jr., for instance, probably wouldn't even bother running at this point. I don't really see any end to the "taint" line of reasoning.

# posted by

Asher : 8:36 PM

...and what if the governor is not removed from office and not indicted or indicted and acquitted???

One senator for Illinois? It seems to me that Senator's Reid's "decision" (if upheld) now may require the Illinois legislature to remove the Governor just so they have two senators!

Who thinks this is constitution?

# posted by

CSN : 9:30 PM

... and one other point concerning where to draw the line when determining when the returns of an election or an appointment can be challenged by the senate. I would say you have to look at the process that led to the election result, or in the case of an appointment, you look at the process that led to the appointment (not an "attempted past appointment"). If there is fraud or criminality in the election or specific appointment then perhaps the senate may have ground. Any other rule would blur the challenge to the appointment with the general authority of the person making the appointment. As I have said elsewhere, the general authority of the governor to make appointments should not be decided by the Senator Reid, but by the state legislature.

# posted by

CSN : 9:44 PM

Of course Reid actually told Blago to pick one of two White prospects and told him NOT to select any African-American prospects. So barring Burris will not be free of the taint of that. If an employer did that he'd be sued. I wonder if Burris has a remedy under civil rights laws.

# posted by

J : 10:51 AM

I am sorry to go off topic but I wonder when international events will become so dire and catastrophic that we will be able to discuss the Israeli invasion of Gaza on this blog. So far it seems the blog writers are afraid to mention Gaza and the human calamity that is now occuring. How about a discussion on whether Israel's actions comply with international laws on the law of war (perhaps an oxymoron) or whether they constitute war crimes.

# posted by

BOB EDER : 3:45 PM

How about a discussion on whether Israel's actions comply with international laws on the law of war (perhaps an oxymoron) or whether they constitute war crimes.

How about a discussion on whether Hamas' actions in continually bombing civilian targets over a period of months or years complies with international laws, or constitutes war crimes? Or whether launching attacks from schools, mosques, etc. and using their inhabitants as human shields complies with international laws, or constitutes war crimes?

The calamity of what is going on in Gaza was entirely predictable from what preceded it. You can only attack someone for so long before they get tired of it and decide to fight back and block your ability to attack them further.

At some point, the Palestinians are going to have to take responsibility for the consequences of their own actions.

# posted by

Zachary : 2:04 AM