Why I must agree with Dan Proft

By Mark Rhoads

The first time I ever met U.S. Senator-designate Roland Burris was thirty years ago when I was serving my first term in the state senate.  It was a cold day and the Inauguration Ceremony for the elected statewide officers had been moved inside to the National Guard Armory.  Burris gave one of the best speeches I ever heard in my life.  He talked about his family, growing up in Centralia, Illinois, and what it meant to him to be the first African-American ever elected statewide in Illinois.  But his remarks did not focus on his race.  His focus was the opportunity for public service and why citizens should embrace it when they can.  He was not just eloquent, but substantive and inspirational as well.  He said he had visited the tomb of Abraham Lincoln at Oak Ridge Cemetery that morning and prayed that his service could be inspired by the spirit that

Lincoln spoke of in his second Inaugural Address when he called for malice toward none and charity toward all.  I was impressed with Roland Burris and the obvious good will that seemed sincere to me in the years I worked with him when he held the office of Comptroller.

It is perfectly true that Gov. Rod Blagojevich is under a heavy cloud of suspicion of having attempted to trade his power of appointment for personal gain.  If I had to bet today, I would bet that Blgojevich will ultimately be found guilty of a crime in a federal court and/or be impeached (indicted) for misfeasance by the Illinois House and perhaps conviced by the Illinois Senate using a standard of preponderance of the evidence.  But none of that has happened yet, and until it does happen and he is removed from office Blagojevich is still the elected governor who has a right to exercise the duties of his office, one of which is to fill a vancancy in the US Senate.

Of course it is also true that Gov. Blagojevich is using the race card and the appointment of Burris as a way to show that he will not be stampeded from office until he puts up a fight.  His appointment of Burris is therefore viewed as cynical and I agree with that view.  But that has nothing to do with the fact that in my opinion, Roland Burris has been legally appointed to the US Senate and should be seated.  

There are two different sections of the U.S. Constitution that bear on the manner of seating a senator.  Gov. Blagojevich has acted under the power of the 17th Amendment.  The relevant section 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."

Illinois Republican Chairman Andrew McKenna is completely correct when he points out that Democrats in the Illinois General Assembly said they would support stripping the governor of the temporary appointment power (presumably over his veto) and support a direct election sooner than the next US Senate election in 2010.  Instead, once again, as they did in 2006, the Democratic leaders of Illinois enabled Blagojevich to keep on doing misdeeds of all sorts.  Now, they seek to distance themselves just as President-elect Obama is doing who also supported Blagojevich in the past at critical times.  

US Senate Majority Leader Harry Reid (D-NV) and Assistant Leader Dick Durbin (D-IL) assert that they have the right to reject any appointment made by Gov. Blagojevich because they don't like Blagojevich and think, as I do, that he is likely guilty of a crime that has not yet been proven in either of the two appropriate legal forms of the federal court or the Illinois General Assembly.  Our system guarantees that even officials accused of wrong doing must have due process and be able to answer their accusers.  The Reid-Durbin position hangs by a slender Constitutional thread found in Article 1, Section 5 of the US Constitution which might at first glance appear to contradict the 17th Amendment.  The 17th Amendment was written more than 120 years later after Senator Billy Lorimer (R-IL) had the incredible audacity to not only to bribe dozens of state lawmakers in both houses in Springfield to help him win a vacancy but went on to bribe two juries in Cook County to find his pals not guilty.

The problem with the Reid-Durbin position is that Section 5 does not really given them the power they are claiming.  It says: Each house shall be the Judge of the Elections, Returns, and Qualifications of its own Member,"  But that power to judge Qualifications is not absolute and was clearly intended to refer to legal qualifications such as age and citizenship.  That section should not be so distorted as to empower a senator to say "I will reject this member, no matter how legally appointed, because I don't like the governor who appointed him."  If a senator does that, in my opinion he or she is acting outside their oath of office to uphold the Constitution. 

Yes, I agree that Blagojevich should not stay in office a day longer than necessary if the judicial process in either venue finds him guilty of crimes that would call for his removal.  Yes, I think his appointment of Burris is cynical and too cute by half.  But no, his appointment of Burris is NOT illegal no matter how many senators ignore the Constitution and vote not to seat Burris.  The US Supreme Court is unlikely to take up the rights of Burris to the seat in a timely fashion so he may never be seated and they can always dodge something they think is a substantial political question or disruptive of the separation of powers.  But they did rule in a House case that the removal of members cannot be done for arbitrary reasons.  The irony in this case is that Rod Blagojevich, guilty though he may be of misdeeds and crimes, is the one who is acting within the law and Reid and Durbin and President-elect Obama are urging senators to ignore the 17th Amendment in favor of a dubious interpretation of Section 5.

This is not only one of the most interesting political scandals of the last 100 years in Illinois but its also one that tests the intellectual honesty of scholars and attorneys and many are flunking the test by surrendering to passions of the moment rather than upholding the rule of law in each of its particular and specific applications.  The Queen of Hearts in Alice in Wonderland was wrong, the verdict does not come first and the trial second.          

Comments

[Cal Skinner]

What I remember of Burris' talk was that he said Lincoln talked to him.

[Gary Karlin]

Hey Mark,

I couldn't be in agreement with you guys on a few points here:

1. Blagojevich does have the legal authority deemed by our US Constitution and the 17th Amendment to appoint a US Senate replacement for President-Elect Obama.

2. Senate Majority Leader Reid should not reject an appointment because he doesn't like the Governor from Illinois.

However, this raises an entirely different question which has been overlooked in this discussion - What deal exists, if any, between the Governor and US Senator designate Roland Burris?

I know that a Governor is innocent until proven guilty by our constitution, but seeing that we have such a problem with pay-to-play politics in Illinois, this is a strong case for reform.

My question to the readers of this blog, whether Conservative, Liberal, Republican, Democrat, Independent - what can we do as citizens to bring about more accountability in state government?

[Pete Speer]

Harry Reid will not reject the seating of Roland Burris, provided that his papers are in order.

Why? Pure and simply, Reid needs the votes to organize the Senate and get about its business,

Now, will Jesse White actually carry out his stated threat not to certify the Governor's appointment. Party wise, as indicated above, I do not believe that will happen.

So it looks like as follows. The General Assembly passes a resolution (same political pressures) approving of El Rolando. Jesse White says, since you approved, I will certify.

Mr. Burris goes to Washington and Harry Reid says -- since the Illinois legislature approved and since the Secretary of State certified, we will allow him to be seated.

The doors of the Senate close behind him. He is given space in the Siberia Senate Office Building...and is never heard from again.