Senator Reid: Seat Roland Burris!

Harry Reid, Mr. Burris Has Come to Washington. Only a few people in the United Sates do not know that on December 30th Illinois GoverNOT Rod Blagojevich used his termite riddled pulpit to appoint Roland Burris, a 71 year old veteran Illinois politician, to the Senate seat vacated by President Elect Obama. Still-Governor Blago move brought a groundswell of dissatisfaction all around, and it has since grown to where a constitutional standoff now exists. Mr. Burris, the first African American to be elected to statewide office in Illinois, is now in Washington, D.C. – with flags flying for all to see – to claim his Senate set. He’s been loud in his proclamation of legitimacy, and despite the origin of his appointment in the apparent extortion factory of Guv Blago, Mr. Burris makes his claims not without reason, or law, on his side.

The former AG threw his hat into the ring on December 13th, saying “I am more than happy and willing and able to come to the call of my friends and to try to be able to bring some sanity and help to the people of this state, the people of America, and to the United States Senate.” Mr. Burris is considered a solid, if not stellar, Democrat, he is a person who would likely vote with the Democratic leadership in the U.S. Senate, and Harry Reid ought to keep that firmly in mind. The GOP has already signaled they will toss bipartisanship under the proverbial bus and Reid ought to know he’ll need the junior Illinois senator to invoke cloture. He appeals to both white and black voters, but, true enough, has sometimes been criticized by black constituents. He’s a middle of the roader – but does not look like a blue dog Dem – and if he’s seated in the Senate through the good sense of Reid and the Democratic leadership he’d prove a good soldier in the ranks of filibuster breakers. Like the Aretha Franklin classic Think (next page) accompanying this entry, “You need me and I need you . . .”

Senator Reid, You’ve Got Bigger Fish to Fry. At a time when the party needs to focus on hitting the ground running in the just convened 111th Congress, controversy over seating Burris has

sadly become, along with the Franken Senate seat, the first bit of business. It ought to play out quickly and cleanly, particularly since the Franken-Coleman contested election will be protracted and tie up the Minnesota seat (discussed here on December 30, 2008 in another entry). Dems do not need yet another seat tied up.

Under Article 1 Section 5. Clause 1 of the Constitution the Senate has the power to “Judge . . . the Qualifications of its own Members,” and it has done so on 132 occasions since 1789. In fact, the question of appointment by a governor has occurred on 26 occasions, but not many since the adoption of the 17th Amendment in . Paragraph two reads:

When vacancies happen in the representation of any state in the Senate, the executive authority of such state shall issue writs of election to fill such vacancies: Provided, that the legislature of any state may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.

This does not appear to be in play here. Illinois explicitly empowers the governor to make such appointments, and regardless of the stink surrounding Blago, he is still constitutionally the Guv. It’s somewhat ironic that the 17 Amendment, replacing the previous method of legislative selection of Senate vacancy appointments, “was fostered by the mounting accumulation of evidence of the practical disadvantages and malpractices attendant upon legislative selection,” not gubernatorial.

In any event, whether the Senate could exercise its Article 1 powers authority to “judge” the “qualifications of its own members” is questionable in this case. While the Constitution uses strong language, in 1969 a Supreme Court case throws some real doubt as to whether the Senate can block Burris. The case, Powell v. McCormack, ruled that Congress is limited to determining whether a person meets the constitutional requirements for membership—30 years old, nine years a citizen, and a resident of his state—or was legitimately elected. And Burris certainly meets those; he is substantially more than 30 years old, is a citizen and resident of Illinois. The Powell case does not indicate that “qualifications” are tainted because the governor is an Olympic class miscreant, soon to be under indictment and likely impeached, and removed from office.

So How Bad Is This? Given the source of the appointment, of course it looks bad. But that doesn’t go to the substance of the appointment, i.e. Mr. Burris himself. He appears to be a good pick of an honest man with years of relevant experience that will be helpful in a time when fiscal experience (he was the state’s Comptroller) and the reassertion of the rule of law (he was Illinois AG) is not just necessary but critical. And, boy howdy, does he have chutzpah! A badly needed attribute among a Democratic Senate too civil (or frightened) to take on the firebrands of the GOP. Put it this way, if Blago had not been caught with his hand reaching for the the till, wouldn’t the selection of Mr. Burris have been viewed as, if not the very best choice, at the least, a very good choice? I believe so.

On December 30th Harry Reid stated that the Democratic leadership will fight seating Mr. Burris.

It is truly regrettable that despite requests from all 50 Democratic Senators and public officials throughout Illinois, Gov. Blagojevich would take the imprudent step of appointing someone to the United States Senate who would serve under a shadow and be plagued by questions of impropriety. We say this without prejudice toward Roland Burris’s ability, and we respect his years of public service. But this is not about Mr. Burris; it is about the integrity of a governor accused of attempting to sell this United States Senate seat. Under these circumstances, anyone appointed by Gov. Blagojevich cannot be an effective representative of the people of Illinois and, as we have said, will not be seated by the Democratic Caucus.

Today, in a theatrical performance, Mr. Burris was turned away from the swearing in of the 111th Senate. In his speech opening the new session of Congress, Majority Leader Harry Reid (D-NV) said, “Mr. Burris is not in possession of the necessary credentials from the state of Illinois.” Burris indicated that the Secretary of the Senate, Nancy Erickson, had informed him that his credentials were not in order because they lacked the signature of the Illinois Secretary of State and the state seal. This issue is to be argued before the Illinois Supreme Court, and most believe that the signature and seal are not required. The spokesperson for the Illinois Secretary of State indicated agreement, stating that his office did not exercise “veto power” over the governor’s appointments. This is basic constitutional law, and it is likely that, in the absence of some Olympic level legal gymnastics, the court will sustain Mr. Burris’s appointment. The requirement for the Secretary of State’s signature is a Senate standing rule, however, and that may implicate the Article 1 powers, but invoking that power is bad politics, I believe. And Senate rules are, to put it mildly, flexible.

But back to the swearing in attempt today. In a classic shoot the messenger move, the AP reported this as if it was Mr. Burris’s fault:

But if what Burris really wanted a circus, he got one. A mob of reporters awaited him outside the Senate’s North Door, where Sergeant at Arms Terrance Gainer and a throng of officers escorted him through security and up to Erickson’s office on the third floor. There, more reporters waited. Once again Burris went through a metal detector and into Erickson’s office, nestled between the elevators and the press gallery. Twenty-one minutes later, Burris left; a spokesman for Senate Majority Leader Harry Reid confirmed that Burris had been rejected. Burris left the building, escorted by Gainer and his officers. And soon, a noisy throng of reporters followed him across the street, and Burris confirmed that he’d been turned away.

An attorney for Burris, Timothy W. Wright III, said that “our credentials were rejected by the secretary of the Senate. We were not allowed to be placed in the record books. We were not allowed to proceed to the floor for purposes of taking oath. All of which we think was improperly done and is against the law of this land. We will consider our options and we will certainly let you know what our decisions will be soon thereafter.” Asked what his options were, Wright said there possibly could be a court challenge and he said that Burris also would continue to talk to the Senate leadership.

One bright spot emerged for Burris supporters this weekend. On Sunday, Reid signaled a possible settlement when he told David Gregory of “Meet the Press,” “I’m an old trial lawyer. There’s always room to negotiate.” If there is one certainty about Reid, it’s that one. His negotiation style with the GOP has often left Democratic goals begging. This time he could use it to fashion a reliable Illinois Senate seat.

Senator Reid: THINK! So Reid says “negotiation.” But he also wants to show strength, and he’s not really accustomed to it. He’s likely to make a mistake by remaining hidebound to his previous statement. We’ve just spent eight long years being stymied by a President who remained stuck in his former beliefs. Reid and the Democrats should revise their approach. They can educate the public as well. How? (1) Restate their objections to Blago in no uncertain terms; (2) state that, despite this, Blago is still constitutionally empowered to make this appointment and, under our system, is innocent until proved guilty; (3) discuss the excellent character and qualifications of Mr. Burris; (4) discuss the extremely difficult problems facing the national and the Senate’s obligation to “hit the ground running”; (5) educate about the possibility of a Senate appointment fight being protracted, distracting, and, in the end, contrary to Powell vs. McCormack; (6) educate about the high costs of a “special election” option and the also high cost of a vacant Senate seat; (7) and finally, most importantly, reiterate that positions taken are subject to change given new information or context, and that leadership is not demonstrated by riding a horse off a cliff because your map indicates there’s a road there.

I hope that Reid doesn’t think he’s painted himself and the Democratic Senate into a corner. It’s absolutely certain that the Republican party will squeal no matter what Reid does, so he shouldn’t think he’ll win either way with them. And, undoubtedly, they savor a special election against “Blago Democrats,” and if Reid goes forward and vacates the seat, he’s courting a new Republican Senator from Illinois. It’s time to exercise the privilege of the majority party to change its mind. Use that power for once, grow into it, and move on to more important fights ahead with Senator Roland Burris solidly on your side.

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