I wrote last year about why I think it is likely that Roland Burris will end up in the Senate seat. Of course, reasonable people can disagree about the various legal arguments that have been made, but I think that on balance the scholars are coming down on the side of Burris and Blago.
Rich Miller has done excellent work in writing about the political nature of the impeachment process. In essence, the Senate can remove Blago for reasons that don't need to reach criminality. But he's wrong in suggesting that the power of the Senate to not seat Burris is clear. First, the article he cites conflates jurisdiction and justiciable. They are two separate terms with two separate meanings. Clearly, the US Senate has jurisdiction when it comes to reviewing this appointment. But just as clearly, under Powell, their decision is justiciable, that is, a court can review it. Miller links to a WaPo article that quotes former Frist Chief of Staff Eric Ueland. Like anyone associated with the U.S. Senate, he feels strongly about their prerogatives. That he suggests that the Supremes couldn't review this is no surprise. And that the Post didn't find another commentator on this on New Year's Eve is also not surprising.
But don't be misled. The Slate commentary from Amar and Chafetz is not typical. A better view I believe is Rick Hasen's, whose electionlawblog is the best source in the Country for election law news and analysis. I pointed yesterday to a few other law scholars. Add Ann Althouse to your reading and this ABC news analysis as well
My concern is that the WaPo article and the analysis by Miller will be matched by partisans who will convince the public that the dirty work of keeping this appointment from Blago will be done by the Senate. That's a dangerous road to follow and one that I and many others believe will lead to an appointment that no one seems to want.
We need a special election. Any legislator who punts this important decision to the U.S. Senate or to the U.S. Supreme Court is doing a disservice to the voters.
"Any legislator who punts this important decision to the U.S. Senate or to the U.S. Supreme Court is doing a disservice to the voters."
So rather than follow what the Florida legislators did with the blessings of the GOP as a service to the voters, you are advocating against such an action saying its now a disservice. Why?
what did the Florida legislators do exactly?
By what rule of law do you suppose that the Illinois Legislature has the power to retroactively remove the power of appointment from the office of the Governor and require a special election? It is a power that the incumbent has already exercised. A Senator has been appointed. The horse race is over and it is too late to change the rules to declare the winner ineligible to enter the contest.
3 Score + 10
Keith Hays
Keith: You are correct that the Ill. legislature can not undo the appointment. A cursory reading of the 17th Amendment to the U.S. Constitution suggests to me, however, that even after the appointment, they may still have the authority to call a special election anytime between now and 2010. (Standard caveats apply: I am not a lawyer, don't play one on tv, and did not stay at a Holiday Inn Express last night.)
Kevin is exactly right. the appointment is until the next election. there is no reason the legislature can't call another election. As I said in a previous post, I believe that they ought to allow Burris to be seated, based on the law and on trying to minimize the circus environment that's been created.
what did the Florida legislators do exactly?
They turned it over to the Florida State Judicial System.
I jsut read the law, the appointment is until the next general election defined in the election code as the biennial election where US. Reps are elected. I'm not sure they can modify a temporary appointment now as the appointment is made. Had they done this weeks ago before the appointment, that'd be a different story.
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j
Part-Time Pundit
Here (I think) is the section John was referring to:
(10 ILCS 5/25‑8)(from Ch. 46, par. 25‑8)
Sec. 25‑8. When a vacancy shall occur in the office of United States Senator from this state, the Governor shall make temporary appointment to fill such vacancy until the next election of representatives in Congress, at which time such vacancy shall be filled by election, and the senator so elected shall take office as soon thereafter as he shall receive his certificate of election.
(Source: Laws 1943, vol. 2, p. 1.)
As I said above, I'm no lawyer, but I suspect that a really, really good one could drive a truck through parts of this if they wanted to.
For example, "the next election of representatives in Congress" does not specify that the election in question must be a general election held in November of even numbered years. Nor does it specify that the election must be of all Congressional representatives in the state. Those may very well be the common usages, but they are not specified in the statute.
Not to mention that Illinois statutes are the province of the legislature, and may under the right circumstances be changed at their sole discretion. The question of whether a sitting appointee may have their term directly truncated by revision of statutes could possibly be one for the courts. Even less clear is whether their term could be indirectly truncated by new laws providing statutory clarification of existing law, so long as they did not directly contradict the previous language.
My guess is that people who, unlike myself, actually know what they are talking about could come up with even better stuff...
LV, are you talking about turning over a Senate appointment to the judicial system?
I line up with Keith on this one. I think you could make a stronger argument that Blago obtained his seat through fraud and seat Judy Baar Topinka than you can make for a special election. Before you jump on me, let me state the case.
In order to call for a special election you need to have a reason to call for one. If you don't your actions are just arbitrary and might be done for no other reason than you don't like who was appointed. I don't think that is right.
A court of equity, however, may have the power to address votes given to Blago that were procurred through fraud. What if instead of accumulating a campaign fund of 55 million, he instead stuffed the ballot box with enough votes to defeat Topinka. This, of course, would require proof of fraud. This is essentially what he did through the money he acquired through kick backs.
Thus , I think it is more likely that you can prove that Blago's election was the fruit of the poisionous tree rather you can prove that something that Burris has done would require a special election. I am happy to listen to the argument, and heavens knows I have every reason to dislike Blago (maybe more so than anyone here), but I don't think that can happen.
I discussed this issue with Steve Beckett at lunch last week. He thinks, and I agree, that the Supreme Court would issue a mandamus that requires Burris to be seated. I argued that this might be considered to be a "political issue" (standing issue and not take it) but he argued that there was a case that they took up on this same issue.
"In order to call for a special election you need to have a reason to call for one. If you don't your actions are just arbitrary and might be done for no other reason than you don't like who was appointed. I don't think that is right."
I never said that it was guaranteed to be right; only that it might be legal.
I wouldn't classify the action as arbitrary if it changes the rule for future appointments as well. Further, it isn't being suggested "for no other reason than you don't like who was appointed. " It's being suggested because people don't like the process. When you don't like the process, you change it.