The Senate's Decision to Seat Roland Burris: Some of the Legal Issues the Controversy Raised, and a Lesson It Should Teach Us

By VIKRAM DAVID AMAR


Friday, Jan. 16, 2009

This week, Democratic Senators (apparently at the urging of President-elect Obama) did an about-face and decided they would seat Roland Burris, the 71-year-old veteran African-American politician whom embattled Illinois Governor Rod Blagojevich had craftily selected to fill the vacancy created by Obama's resignation from the Senate. In this column, I will discuss some of the legal issues surrounding this episode, and mention at least one cautionary lesson the episode teaches that the Senate majority party (and the President himself) may want to heed.

The Allegations of Corruption, and the Current Status of Governor Blagojevich

First, some background. As most everyone now knows, Blagojevich is embroiled in a federal criminal investigation. The indictment against him (featuring details of seemingly incriminating audiotapes of conversations in which Blagojevich spoke very frankly) accuses the Illinois Governor of trying to "sell" the Senate seat held by Obama.

Specifically, the prosecutors allege that Blagojevich demanded from would-be Senate candidates money, a job for his wife, and/or other goodies in exchange for a shot at being appointed to fill the Obama-created vacancy. (Illinois law, pursuant to the Seventeenth Amendment of the U.S. Constitution, authorizes the Governor to make a temporary appointment to fill a Senate vacancy until an election is held for the state voters to decide who shall represent them in Washington. Obviously, holding a Senate seat for any significant time is a big thing, and being able to run in a U.S. Senate election as a semi-incumbent who has done the job for some number of months, is also a big advantage.)

The Illinois House of Representatives, drawing on some of the materials supporting the federal indictment and some other evidence as well, impeached Governor Blagojevich earlier this week. "Impeachment" (in both federal and state law) generally refers only to the lower body of a legislature's charging an official with wrongdoing that is sufficiently serious to justify removal from office. But Blagojevich (like other impeached officials) will not be removed from his Governor's post unless and until the Illinois Senate "convicts" him of the charges on which he has been impeached. (Readers will recall that President Bill Clinton was impeached by the U.S. House of Representatives, but not convicted by the U.S. Senate, and therefore was never removed from office.)

So, for the time being, Blagojevich has been criminally indicted and legislatively impeached, but he has not been tried, convicted, or removed from office. He is, in short, still the Governor of Illinois. And, as noted above, the Governor, in Illinois, is given state and federal power to make appointments to fill U.S. Senate vacancies.

How the Constitution Empowers the Senate to Judge Elections, Returns, and Qualifications

How then, did the entire Democratic caucus (that is, all the Democratic members of the U.S. Senate), with the full backing of President-elect Obama, publicly resolve a few weeks ago (before the Burris pick was announced) that the Senate would not seat anyone whom the tainted Blagojevich tried to pick? The answer lies, at least in part, in the words of the Constitution itself.

As many commentators (including my frequent co-author Akhil Amar and Josh Chafetz on the Slate.com site) have reminded us, according to the terms of Article I of the U.S. Constitution, a majority of the Senate itself (presumably without any interference by courts or anyone else) gets to be the "Judge of the Elections, Returns and Qualifications of its own members."

Mr. Burris was appointed, not elected, so Article I's reference to "Elections" may not be directly on point. Also, in Powell v. McCormack, the Supreme Court determined, even as it signaled respect for the Senate's exclusive power to judge certain contested things, that the word "Qualifications" in Article I does not refer broadly to a person's fitness to serve generally, but rather refers only to the technical qualifications for an office laid out elsewhere in the Constitution, such as the requirements that a Senator be at least 30 years old and a resident from the State in which he is picked. Mr. Burris undeniably possesses all these "qualifications."
But what about the Senate's power to be the "Judge" of Senate "Returns?" As the Amar/ Chafetz essay explains, a "return," at the time of the Constitution's framing, involved an appointment made by a sheriff or other official. In other words, just as the Constitution gives the Senate the sole power to resolve the question of whether someone was validly elected (as the Senate might have to do when it decides whether to seat Al Franken from Minnesota), so too the Constitution gives the Senate the power to decide whether someone was validly appointed.

Was the "Return" In Burris's Case Valid?

But can the Senate credibly argue that Mr. Burris was not validly appointed? After all, there is no question that Illinois (unlike a few outlier states) does indeed give Governors the power to make temporary U.S. Senate appointments. And there is no question that Governor Blagojevich (who, again, is still Governor) did in fact select Burris, rather than someone else. (In other words, this is not a situation where two people show up at the Senate's doors in Washington both having claimed to have been appointed by the Governor, which would require the Senate to sort out the mess.)

Cutting against these points, however, is the undeniable fact that Blagojevich, and his actions, remain under a very large and very dark cloud. Imagine for a moment that Blagojevich had appointed to the Obama seat a person who was alleged by the federal indictment to have been willing to give Blagojevich the bribes he allegedly sought. Certainly, a majority of Senators could refuse to seat such a person, on the grounds that he was not properly appointed. Mr. Burris, I should be clear, is not mentioned in the Blagojevich indictment. Nor, more generally, is there is any apparent reason to suspect that he bribed or impermissibly influenced Governor Blagojevich in any way to obtain the appointment. And yet, as the Amar/Chafetz piece suggests, it is quite possible (perhaps even likely?) that Burris got the nod because Blagojevich wrongly excluded from consideration other would-be candidates who would not "pay to play" in the way Blagojevich is alleged to have insisted upon. Is that possibility enough to taint all persons whom Blagojevich might try to appoint, and thus to justify the Senate's initial disinclination to seat anyone the Governor decided to tap for the seat?

Quite possibly, the answer is yes. However, even without a criminal indictment, there is always a chance that a Governor in filling a vacancy excluded possible appointees for illicit and/or illegal reasons. So in this area, as in others, nuanced lines might need to be drawn. But certainly the Senate Democrats' original position that the fact of indictment and the specific allegations against Blagojevich justified a prophylactic rejection of all Blagojevich appointments until he is exonerated seems reasonable at the very least. And I expect that it would have been deemed reasonable enough to lead federal courts to stay out of the matter under the so-called "political question" doctrine (a body of case law in which courts defer to certain decisions made by the political branches because, among other reasons, such decisions are better left to more directly politically-accountable bodies).

The Need to Avoid Too Many About-Faces

None of which is to say that Mr. Burris will not add important qualities to the Senate and will not serve with distinction. Rather, it is to suggest that the Democratic Senators and President-elect Obama -- who, like the Democrats in the Senate, reversed direction over the last two weeks and signaled a desire to allow Burris to be seated -- could have stuck to their original position and invoked reasonable and principled arguments to support it.

When a Judge, or a Senate acting as a Judge, decides it has made a mistake, there is of course value to be gained from changing course, and doing what the Judge now believes is the right thing. But as the idea of stare decisis and related concepts illustrate, there is also real value in continuity and stability, and in having one's word taken seriously. That is especially important for an incoming President and a newly-Democratic Congress, who will have to convince the minority Republican party and the rest of the world that when they say something, they mean it.


Vikram David Amar is an Associate Dean for Academic Affairs and Professor of Law at the University of California, Davis School of Law. He is a 1988 graduate of the Yale Law School, and a former clerk to Justice Harry Blackmun. He is a co-author, along with William Cohen and Jonathan Varat, of a major constitutional law casebook, and a co-author of several volumes of the Wright & Miller treatise on federal practice and procedure. Before teaching, Professor Amar spent a few years at the firm of Gibson, Dunn & Crutcher.

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