Thursday, January 01, 2009

The case against seating Burris: Too Clever By Half?

Sandy Levinson

I truly regret to report that I am unpersuaded by the arguments made by my friends and usual compatriots Jack Balkin, Mark Tushnet, and Akhil Amar (I don't know Josh Chafetz, the co-author of the Slate article defending the Senate's prerogative to refuse to seat Burris). I suppose it's true that the Senate could/should consider the bona fides of a gubernatorial appointment if there is good evidence that it was procured by criminal means, including bribery. The problem is that there is not a scintilla of such evidence in this case. Governor B. might well be guilty of "attempted sale of the Senate seat," but it's clear that it didn't work, and that he, clever politician that he is, reached out to strengthen himself with a key constituency and, an added bonus, to discomfort many of his erstwhile Democratic Party allies. I don't see how one can mount a good-faith argument against seating Burris unless one is willing to open each and every gubernatorial appointment to some kind of "good-government" scrutiny. Consider, for example, the shameful appointment of Lisa Murkowski to the Senate by her father, the former Senator who became Governor of Alaska. There is no plausible evidence that anything other than nepostism explains the appointment. Should the Senate have been empowered to decline to seat Ms. Murkowski (who was subsequently elected, though with a minority of the total vote, given the presence of minor parties in the race)? Should the motives of Gov. Patterson be subjected to relentless scrutiny if he bows to pressure to name Caroline Kennedy as a tribute to a dying senator and, in addition, to get access to the Bloomberg and Kennedy donor list that presumably comes with that appointment?

Given the capabilities of the analysts in question, I certainly don't question that the arguments made by Tushnet, Balkin, Amar, and Chafetz are within the realm of plausibility, and I certainly agree that senators have the raw political power torefuse to seat Burris (and, therefore, to deny the people of Illinois half their representation in the Senate for many months). But just as Jack has made his turn, wisely or not, to a form of "originalism," I find myself, given my own turn toward emphasizing the importance of "hard-wired" aspects of the Constitution, rather inclined to what some people might even denigrate as "mindless textualism." That is, I do believe that the text of the 17th Amendment, read in its most ordinary sense, allows a state to empower its governor to make a temporary appointment (even if I do concede that the Senate could refuse to seat the appointee if one thought that the governor had made the appointment as part of criminally corrupt bargain). Governor B. is the fully legal governor of Illinois unless and until he resigns or is impeached. To say that the untoward conduct of which he has been accused deprives him of the power that the Constitution authorizes Illinois to give him leads to all sorts of conundrums: If I am charged with violating an Illinois statute passed by the Illinois legislature and then signed by Governor B. in the last couple of months, can I claim that the statute isn't "really" legitimate because, after all, Gov. B. isn't really the governor anymore? That's obviously absurd on its face. But why, precisely? Is the answer that Balkin et al. are really defending the prerogative (and I use that word advisedly) of the Senate to offer what laypeople would find strained and hypertechnical readings of the Constitution in order to escape a political embarrassment? If so, I return to Murkowski? Why shouldn't the Senate have risen as one to say that such blatant nepotism violated our "Republican Form of Government." Akhil has a brilliant discussion in his book America's Constitution on the Founder's rejection of dynasticism.

I have been railing for the past several months against the almost criminal stupidity of the Inauguration Day Clause, but I've never suggested that there is a clever way of working around it in the absence of a willingness of President Bush and Vice President Cheney to resign first. If one feels "stuck" by that incredibly stupid clause, with consequences far, far worse than allowing a presumptively competent, if somewhat superannuated Illinois politician to serve a couple of years in the Senate, then I think we should recognize that the 17th Amendment, too, generates a relatively hard-wired rule that limits the possibilities of further Senate scrutiny and the political mischief it invites. (Imagine, for starters, that the Senate is closely divided and that accepting the appointment would change the political control of the Senate (as in 2001) or provide/prevent a "filibuster-proof" majority.)

[Type the rest of your post here.]


deny the people of Illinois half their representation in the Senate for many months

Well, said people will get strong representation from the President.

Not related in any way to the main point, whether the Senate must seat Burris. Got me. A surprising amount of bad conduct is perfectly legal, and Rod may benefit from that here.

But I do contest the suggestion that anyone's harmed by keeping the seat vacant until Rod's thrown out or in. The people of Illinois are well represented at the highest level of government by their former Senator, now President. That happened to work out very well for them. I assert it takes the sting out of their missing Senator.

"not a scintilla of such evidence"

A "scintilla" is pretty small. I think it exists here. More than that. Citing a nepotism appointment is simply not the same thing. There is specific reason to doubt the governor of Illinois over the governor of NY. Your citations are as or more "clever" than those you dispute.

And, it is likely not our call anyway. Can we judge the handful of impeachments by that same standard? Selective "prosecution" exists often enough. Any number of "returns" were questionable, only a handful actually led to serious investigations.

Finally, pragmatically, the fact this one appointment does not matter too much (putting aside the importance of any appointment), makes this unlike the "deciding vote" situation you allude to.

I agree with Sandy. Blagojevich has not been tried or convicted of any wrongdoing. Some commentators are taking Fitzgerald's word on faith that this is the worst case of government corruption he has ever seen, forgetting for the moment about the egregious violations of prosecutorial ethics that Fitzgerald works in order to convict in the media.

Even if Blago is convicted sometime down the road, why should his appointments made before conviction while he is lawful Illinois governor be ruled objectionable today?

Sandy's warnings about the 17th Amendment being twisted and rejected for political reasons are due everyone's caution and consideration. I could easily see Republicans in the majority sometime in the future trying to deny a gubernatorial appointment made by some Democratic governor simply because it would shift power from Republican chairmen.

Quite honestly this smacks of political donatism. Either snow us any shred of evidence that Burris has somehow been illegally appointed, or else let him do his job as the junior senator from Illinois.

These are not the kind of stupid, moronic debates Democrats need to be getting themselves derailed by at such a crucial moment. Other than providing fodder for our erstwhile constitutional law bloggers, its really a horrible distraction.

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Senate Republicans don't want to seat the guy either. They'd rather there be an election, a path the remaining Il. senator supports, and have hope for the seat. They also probably have the power to delay things to help that along.

This is not just about Senate "Democrats." I'm not sure btw how "moronic" it is to argue that any pick B. will make is tainted.

The fact the guy who is replacing uh Barack Obama will commonly be understood to be under a cloud is somewhat more than a debate for constitutional law nerds.

Anyway, hard as it is to believe, there is an argument to be made here on good faith. Sen. Durbin supports an election, one in which a Republican might win, as compared to a Dem pick-up by appointment.

The fear some Republican will misuse the power (obviously, they never would do the same thing based on principle, apparently) easily can stop any number of useful actions. It might caution inaction even with even much more evidence. Misuse of power can come either way. Details for some are just that.

Deciding to change rules in mid stream to have an election will only draw things out even more, especially if Burris does the obvious and correct thing and challenge it in the courts. I'm sure there are better things for Illinois to spend its money on.

Besides, the Democrats need every vote they can get early on, and, like it or not, this is a massive political distraction, mostly Blago's fault, but also partly due to Reid and friends' over the top hysteria.

The easy course, of course, is to refer to the matter to the Senate Committee on Rules and Administration for an investigation. An investigation that, given the sensitive and difficult issues involved, including an ongoing criminal investigation, just happens to take as long as necessary for the Illinois legislature to impeach and remove Blago, or for him to resign, or for some other means for appointing a replacement to be decided on and used. Hey, Justice takes as long as it takes. And the Senate is the most deliberative body in the world, right? Can't help it if it takes that long for the Committee to investigate...

The one vote is not so fundamental, especially given Dems have less than a filibuster proof majority but more than mere 51 vote majority & Obama wishes to govern with more than mere Dem rule.

In fact, a show of good faith, even if it might burden vote getting now, might benefit them in the long run. As would helping to ensure a better person is elected/chosen who could win in 2010.

The election route, no matter how useful, is not somehow illegitimate. The 17A expressly speaks of "temporary" appointments and the power of the legislature to set up an election "as it may direct." This is not akin to an ex post facto law or something.

Il. appears to find the governor tainted and wishes to spend time and effort to clean themselves of him. This might not be the best path, but it seems reasonable enough.

I, commenter alkali, in my capacity as governor of the great State of Illinois, by these words certify that I have appointed Prof. Levinson to the Senate seat vacated by reason of the resignation of Sen. Barack Obama.

I freely concede that I am not recognized by anyone other than myself as the actual governor of Illinois.

Under Prof. Levinson's view, if he presented this comment to the clerk of the Senate, would there be any valid ground for the Senate to refuse to seat him?

If not, I suggest he either rethink his position, or start looking for a D.C. apartment.

The difficulty with hardWiring by the constitutional amendment process is the 3/4 approval process; the equal rights amendment lingered in that limbo a long time. We have some legacy from the settlement demographics which populated the colonies, and the constitution at 300 years is seeming still nascent, albeit well framed; though the Heller case produced some interesting countervailing arguments at Scotus over who understood historical verities, though I appreciate the modern view esposed by the post author has wonderful appeal in many urban settings in that offTopic case. Another distant occurrence was a case in CA a long time ago: that state permits candidates from separate parties to hold the Lt.Gov. post; they are elected separately not as a party slate. A one-week absence by the Gov in 1979 lured the LtGov to name a replacement to a judgeship. On return the gov also named a replacement to the same bench spot. The ensuing court fracas resulted in a state constitutional requirement's passage whereby in subsequent years such nominations would cool in the saucer for ninety days in a panel commissioned to evaluate the judge nominations.

There was another instance in that same state of CA in 2005, when the LtGov became target of a draft law which would strip the LtGovship of executive authority. This post will not explore the outcome of that wild exercise.

However, it is nice to see prof Levinson's regard for the measure of law which is written in cement already as a worthy starting point.

The reason you impeach a governor is to remove his power. Until that is successfully done – he still has his granted powers.

As far as the appointment, if there is evidence that the specific appointment was a result of fraud, miss-deed, criminality then perhaps the appointment could be attacked along the lines argued by JB et al, however, absent conduct related to the specific appointment, what is the basis?

The commentators who state otherwise are – in effect – arguing that a governor’s powers can be removed prior to the lawful removal of his power (removal from office). I don’t think there is a constitutional basis for this.

With all due respect to JB et al., if you read “appointment” (17th Amendment) to be similar to the election “returns” (Article I section 5) and question its validity you still must confine yourself to the circumstances surrounding the specific election, or as in the instant matter, specific appointment; not alleged past conduct as JB et al attempt. For example, you can’t challenge election returns based on voter irregularity from an earlier election. It must be an irregularity that occurred in the election of the specific senator (or, as here, the appointment of the specific senator).

I think what you have to focus on is the constitutional implications of removing power from a governor prior to his/her successful impeachment and removal from office. Think about the precedent that would set.

I called it the Reid Rule, but I really think it would be a baseless rule.

I know that it may be embarrassing for the senate to reverse itself, but everyone makes mistakes and it is better to stay in bounds and avoid further embarrassment – especially when there are so many important issues facing the country.

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Sandy is much too kind to his constitutional colleagues who crowd like angels to dance on the head of the constitutional pin to fill former Senator Obama's Senate seat. (No, I am not calling them "pinheads.")

Sandy took a shot at JB's recent born-again originalism. In this regard, I recommend a careful read of Adam M. Samaha's "Orginalism's Expiration Date" (Cardozo Law Review Vol. 30:3, 101) also available via SSRN at:

The issue is highly political as demonstrated by the filling of past vacancies and some currently anticipated. Who remembers how JFK's MA Senate seat vacancy was filled in 1961 with a "seatholder" to permit JFK's younger brother Ted to run for that seat? Maybe these constiutional angels have their separate eyes on a book or law review assignment. Of all the serious constitutional issues we face, how significant is this one?

And speaking of originalism (as were Sandy and I), I recommend Richard Primus' "Limits of Interpretivism" (Harvard Journal of Law & Public Policy, Vol. 32, page 1) available via SSRN at:

I think the head of that constitutional pin will get more crowded as soon as the real (right leaning) originalists join in this constitutional dance. Who knows, this may get constitutionally hotter than Heller

"The difficulty with hardWiring by the constitutional amendment process is the 3/4 approval process;"

I think we have here a widespread misunderstanding of the statistical nature of the supermajorities required by Article V.

A supermajority of voters requires overwhelming support to achieve, it's very difficult.

A supermajority of legislatures merely requires that 51% assent by the voters be uniformly distributed.

The purpose of the supermajority requirement is not to make amendment difficult, and indeed, it was quite consistent with the repeal of Prohibition taking place in a matter of months. The purpose is to prevent the entire country's Constitution from being amended in ways which only have regional support. I think this is a worthy constitutional feature in a federalist system.

And the ERA? It didn't fail because the amendment process is difficult. It failed because the public got extremely worried about what the courts might do with it, given what they were willing to do without a constitutional leg to stand on. A concern which has only grown since, with cause.

The real obstacle to the amendment process today is not ratification, but origination, due to a disconnect between the interests of state governments and Congress. There are plenty of amendments everyone understands would be speedily ratified, Congress simply refuses to originate them.

And Article V has a solution to that, the convention process. I expect one will be called soon enough, and then the fireworks begin, the real crisis, when Congress refuses to answer the call, or attempts to subvert the convention.

On the original topic, I agree: Claims that the Burris appointment isn't legitimate are pretty weak. Not that the Senate doesn't have the raw power to carry it off anyway. I do seriously doubt that a Democratic Senate has the political will, though, to refuse to seat a black man to fill a black man's seat, barring rather direct evidence that man himself is a criminal.

Adam M. Samaha's "Originalism's Expiration Date" article referenced in my earlier comment starts with the following in its abstract:

"The Constitution of the United States declares itself supreme law, but even the amended document is ancient. By 2008, the predicted age of a randomly selected word in this text reached 178 years. The judiciary, for its part, might not interpret the text until decades after ratification. For Article V amendments, the average lag between ratification and Supreme Court interpretation has been about 40 years. The question is how these features of our supreme law might influence the choice of interpretive method and, ultimately, constitutional decision-making. In particular, some scholars indicate that originalism may be a strong force in adjudication when constitutional text is still fresh, but should then fade with time."

The 17th Amendment has been around for a long time. Let's hear from more originalists, as well as legal historians, as to its interpretation on the Burris designation. The head of the constitutional pin has lots of room. Let's dance.

Sign me up as an out-and-proud supporter of "mindless textualism."

The attempts by JB and others to overlay the "spirit" of Article I, Section 5, Clause 1, upon the Seventeenth Amendment is sophistry on steroids.

There was no "election and no "returns;" "qualifications" is controlled by Powell. Article I, Section 5, Clause 1, is therefore utterly inapplicable. The Seventeenth Amendment, and only the Seventeenth Amendment, applies here.

For better or worse, Blago is still the governor and still enjoys the full power of his office. Any questions about misconduct in the appointment process -- a topic not addressed in the Seventeenth Amendment -- is a matter for the Illinois legislature and/or the courts. But it most definitely not a question for the Senate under its I-5-1 power. It simply has no such power here.

If Reid & Company are so indignant, then let them expel Burris after he is seated (sorry for more "mindless textualism," but let's recall that the Senate's Clause 2 expulsion power, unlike its Clause 1 seating power, is indeed plenary).

Structurally, who gets to make the determination of whether a scintilla of evidence exists?

The Amar article, to the "mindless textualist" was partially based on text, in particular, the meaning of "return" in the 1700s. In relevant part:

"According to the Oxford English Dictionary, a 'Return' in the time of the framers involved a report of an appointment made by a sheriff or other official."

Likewise, the executive appointment was not somehow a creation of the 17A. The original Constitution ALSO noted "the Executive thereof may make temporary Appointments."

It seems a bit illogical, if not necessarily conclusive, that the choices of one person (unlike "elections" of a whole legislature) was solely the call of the state involved.

What sense would that make? And, the Amar argument also makes sense since "returns" can be deemed a bit redundant if given a limited understanding that could be covered by the word "elections."

I have said a lot on this issue, but simply put, it is at best not conclusive one way or the other.

I'm not sure where I come down on the "is an appointment a return" debate, but I do agree that the Senate can't refuse to seat him without, you know, some reasonable belief that his appointment was made corruptly. There's absolutely no evidence of that and it'd be pretty shocking if Blago, about to be indicted for selling the seat the first time, tried to sell the seat again. As for the argument that Burris never would have been appointed if not for Blago's previous corruption, that is, that he couldn't very well go hand the seat to Jackson or another of the original candidates at this point, that's true, but I don't understand what weight it holds. If he had resigned and Quinn had become the Governor, Quinn probably wouldn't think about appointing any of the original candidates either, as they would all be just as tainted as they are now - but that certainly wouldn't make his appointee illegitimate.

And, of course, Republicans have already picked up on the possible refusal to seat Burris as a possible means to stop a provisional seating of the now leading Franken from MN if he is certified by his state.

Just to keep the "modalities" (in Philip Bobbitt's term) straight, any argument that depends on knowing what "return" meant in the 18th century is an historical argument, most definitely not a "textual" argument. The appeal of "textual" arguments is precisely that ordinary Americans without s single day's legal trianing can understand the text (e.g., when is Inauguration Day), whereas historical argument becomes steadily more esoteric and, at times, an offense to what ordinary people might regard as the "common sense" of the "plain language." That's why critics refer to "mindless textualism," precisely because very little real analysis is called for after one points to the language and asks "what part of [the particular piece of text] do you not understand."

"That's why critics refer to 'mindless textualism,' precisely because very little real analysis is called for after one points to the language and asks 'what part of [the particular piece of text] do you not understand.'"

As Justice Black would say about "no law" in the First Amendment.

I take SL's point, though two things come to mind.

(1) I said 'was partially based on text' ... since he cited TEXT, it was "partially based" on text.

(2) The "mindless textualist" might take the simplistic "it's right there in black and white" tack in determining the meaning of text, but most textualists, including Black (who cited history and other things, which his pal but opposite number, Harlan pointed out), admit it is a bit more complicated.

Black thus used text+ Anyway, if you want to use text alone, fine enough. I can use the dictionary on my desk (2005) and it also has a similar meaning of 'return.'

A "scintilla" is pretty small

OMG, there's such a thing as a scintillometer
and people who know how to use it.

The story just happened to break at the same time as this discussion. Go figure.

What we now need is a:


to count the constitutional scholars dancing on the head of the constitutional pin on successor appointments to the Senate.

That happened to work out very well for them. I assert it takes the sting out of their missing Senator.
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There are plenty of amendments everyone understands would be speedily ratified, Congress simply refuses to originate them.
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