by Mark Rhoads
I have known Sen. Dick Durbin for thrity-two years and what discourse we have had has always been positive with a focus on benefitting Illinois. He is a smart individual who graduated from Georgetown University Law School but most of his life has been spent as an elected or appointed official rather than practicing law. He is a hard-working partisan and liberal Democrat. While our philosophies of government are very different I still respect his normally energetic and sensible approach to political debate.
In the last eight years Dick has sometimes over-played his partisan role and shares the liability of many lawmakers who sometimes speak before they think a matter through even though they are smart. But there have been many days now to think about the legality of the appointment of Senator-designate Roland Burris. This topic is not even a close call if one just reads the 17th Amendment. So why is a smart legislator such as Dick Durbin making so many foolish statements about the legality of seating Sen. Burris?
Sen. Durbin claimed yesterday after an Illinois Supreme Court rulling that there is a legal "impasse" concerning the Burris appointment. That statement is nonsense at best, and intellectually dishonest at worst. Sen. Durbin is claiming to be confused about the legality of the Burris seat because he chooses to be confused or is attempting to confuse the media and the people. I have no idea what his motivations are, I only know the rule of law is suffering from the hyper-charged politics of the Illinois political culture and Sen. Durbin has been part of the problem, not part of the solution.
Sen. Durbin knows full well that a Senate rule requiring the secretary of state of any state to certify the governor's signature is a trivial matter in 2009 when the signature of an elected and incumbent governor has never been in doubt. The Senate can suspend its archaic and silly rule at any time a majority wants to vote to suspend it. It is not a federal or state law, only a rule of a legislative chamber and such rules are suspended almost weekly on a routine basis.
Sen. Durbin knows this but continues to pretend that he thinks there is some "legal" obstacle to the seating of Burris. In an offensive manner, he even suggested yesterday that the Senate could completely ignore the Blagojevich appointment of Burris, wait for Blagojevich to be removed, and then have Lt. Gov. Pat Quinn appoint a new senator. It is time for my friend Dick Durbin to go back to Georgetown University School of Law to take a refresher course in Constitutional law. If the Burris appointment is legal, and it is, Mr. Quinn has no authority to again fill a vacancy that has already been filled by Blagojevich who was acting legally when he made the appointment. I suspect that sooner rather than later the US Supreme Court will educate Mr. Durbin on this topic.
But until then, Democrats and Republicans from all points on the spectrum are debating everything about the politics of the Burris appointment and nothing about the law. Much now depends on Burris, a former Illinois Comptroller and Attorney General. If Burris wants to take his fight to the U.S. Supreme Court, the court will be confronted with two competing interests. The first to uphold the 17th Amendment and the second to refrain from taking on a separation of powers issue where there is "a substantially politcal question" that should be settled by the legislative branch on its own so that the Supreme Court would not have to intervene. I think the court can and should intervene because one branch cannot allow another to ignore an amendment to the Constitution that is so clearly written as to its intent.
Just imagine if a noncontroversial Democratic governor of any state, who had never been accused of any misdeeds, appointed another Democrat to the Senate to fill a vacancy.
Now imagine if a separately elected Republican Secretary of State (this applies to very few states since most appoint that office) were to decide that he or she does not LIKE the appointment and withholds their ministerial signature to block the appointment for partisan reasons? How fast do you think it would take a Democratic-controlled US Senate to repeal that superflous rule? About ten seconds?
Sen. Durbin is harming the rule of law in Illinois by confusing political negotiatons with correct legal form. Sworn in or not, Roland Burris is the legally designated Senator from Illinois until Burris says otherwise from now until January 2011 and Illinois has the right be be represented by two senators, not just one.