Some legal scholars side with Burris

Posted: Tuesday, January 06, 2009 11:16 AM by Mark Murray
Filed Under: Congress, Courts

From NBC's Pete Williams

Although the Senate today turned away Roland Burris, there's a growing number of legal scholars who believe that the US Senate does not have the authority to refuse to seat him.

The Democratic leadership argues that it has the duty to protect the Senate's integrity and that allowing a governor accused of corruption to appoint a senator would taint the body. But that argument is rejected by a growing number of both liberal and conservative legal scholars.

Among the liberals, professor Erwin Chemerinsky, dean of the law school at UC Irvine, writes in today's Los Angeles Times: "Allowing the Senate to exclude Burris on any except the narrowest of grounds would create a dangerous precedent. It could open the door to the Senate or the House overturning the will of the people and excluding representatives under one or another pretext. If Burris -- whose appointment meets the legal test, no matter what you think of Blagojevich -- is not seated, other properly elected or appointed representatives also are at risk."

Among the conservatives, Bruce Fein argues that Blagojevich is still the governor, despite the accusations. In today's Washington Times, he says: "That Mr. Blagojevich was under a dark criminal and impeachment cloud when he elevated Mr. Burris is beside the point. President William Jefferson Clinton did not forfeit his power to appoint, sign legislation, or negotiate treaties during his impeachment ordeal. And Democrats are not questioning Mr. Blagojevich's general authority to discharge his gubernatorial responsibilities until or unless he is impeached, convicted and removed from office. Mr. Burris' appointment has been made a lone exception for partisan political reasons."

Some constitutional experts are solidly on the side of the Senate Democrats, including such notables as Harvard's Laurence Tribe. But as this issue gets more attention among the scholars, there's an emerging view that the Senate is wrong.

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Comments

Burris was dumb to take this appointment. He knew this would happen. I am glad the DEMS said NO WAY

Nj (Sent Tuesday, January 06, 2009 11:24 AM)

Some legal scholars think the world is flat too. And that global warming is man-made.

The Herc (Sent Tuesday, January 06, 2009 11:26 AM)

Oh yeah worrying about "tainting the body of the Senate" is a major concern. 9% approval rating, and a worm of a man like Harry Reid is in charge.

Dave, Tn (Sent Tuesday, January 06, 2009 11:30 AM)

What is this?? Burris was appointed by a sitting Gov.The govenor has not been convicted of anything. HAS THE DEMOCRAT PARTY BECOME THE PARTY OF GEORGE WALLACE?? Defeat Harry reid in 2010

Concerned (Sent Tuesday, January 06, 2009 11:30 AM)

Holy Big Brother Batman. The jokers in the Senate aren't even trying to hide that they're ignoring the Constitution anymore. Either we start preparing to dump the tea into the harbor or else we all should start prepping for the Gulag.

Todd, Medina, NY (Sent Tuesday, January 06, 2009 2:37 PM)

Government of the people,for the people,and by the people. O WAIT! we are now ruled by socialists and communists, no thats not right it's republicans and democrats and they will decide for you. No other affiliates need apply. Big Brother knows whats best for you no matter what your laws say, trial by media Rules.

Chris, Brimfield, Ma (Sent Tuesday, January 06, 2009 2:37 PM)

WE DON'T BEND A LAW TO FIT OUR PURPOSE. THAT IS BEING DONE IN EVERYONES AGENDA TODAY. THIS COUNTRY IS GOING IN A BAD DIRECTION. EXAMPLE; HOME VALUE GOES DOWN TAXES GO UP. THOSE ARE THE KIND OF THINGS I'M TALKING ABOUT THAT'S WHY EVERY THING IS LIKE IT IS TODAY...

CHUCKMCNULTY CHICAGO ILL (Sent Tuesday, January 06, 2009 2:38 PM)

I have to agree with 'Concerned'. Mr. Burris was appointed by a sitting Govenor who was within his authority to make the appointment. Mr. Burris has done nothing wrong that I've ever heard and all the other authorities in Illinois have done is bluster and blubber and blow hot air. If they want to impeach the govenor, then get on with it, but until they get their ducks in a row, stop disrespecting Mr. Burris.

Donnel, Aberdeen, SD (Sent Tuesday, January 06, 2009 2:38 PM)

Blogo only made an appointment to get his name on the appoinment - because his ego couldnt handle anyone else fulfiling his divine right. Burris is going to get caught up in the tailwinds of this scandal - having a reputation of doing anything to get ahead, but never getting caught, doesn't mean he is innocent, and I won't be surprised if they end up seating him and later impeach him (or however they remove a guilty senator).

Rob, Buffalo NY (Sent Tuesday, January 06, 2009 2:39 PM)

This is a no-brainer. Blogo is a scum bag, but he's legally innocent until proven guilty and he's the governor until removed from office by some legal remedy (e.g., impeachment). In the interim, he can perform all the functions of the governor, including appointing Obama's successor. The Senate isn't a private country club that gets to decide which Senators pass their litmus test. Regardless of Blago's legal troubles, this is a slam dunk. Burris should be seated and the conversation should end. If the Senators don't want to allow him into the Dem Caucus, that's their right. But they don't have the power to not seat him. This is a travesty and Senators should follow the law of the land--even when the outcome isn't to their liking.

David M, Falls Church, VA (Sent Tuesday, January 06, 2009 2:39 PM)

I BELIEVE WE ARE A NATION OF LAW, WHAT GIVES THE DEMOCRATIC PARTY THE RIGHT TO USERP THE LAW?

LOUIS J BARTELS, RIVER RIDGE, LA (Sent Tuesday, January 06, 2009 2:39 PM)

Unfortunately in the good ole U.S. of A., you are no longer innocent until proven guilty, you are guilty until you can afford to prove your innocence.
Now, while I find the acts this governor are accused of doing to be horrendous, I can not sit here and judge, for this is the land of the free, and the land where you are supposed to be innocent until proven guilty. I feel todays media plays a significant role in providing bias coverage.....
Let the poor SOB have his day in court to tell his side of the story. With all of the leaked information, I doubt this man will ever find an impartial jury. Good luck.

Chris, Cypress, Texas (Sent Tuesday, January 06, 2009 2:39 PM)

The Seventeenth Amendment states the following:
The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures.

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 amendment shall not be so construed as to affect the election or term of any Senator chosen before it becomes valid as part of the Constitution.

HWhitaker (Sent Tuesday, January 06, 2009 2:39 PM)

They only way, the appointment was not legal is if Burris was part of a pay play deal with Blagojevich. However that is unlikely and the most likely reason why Blagojevich appointed him to gain political capital which is legal. I don't disagree with the senates choice to temporarly deny him the seat due to the unusal circumstances behind the whole episode but eventually (within the next couple of weeks) he should be allowed to take the seat as he has legally been apointed to it. In 2010, if the people of Illionis do not believe he should have taken the seat they may elect someone else.

robert, richmond, virginia (Sent Tuesday, January 06, 2009 2:40 PM)

Blagojevich IS still the governor, until he is either indicted or impeached. As governor, he has both the right and the duty to appoint a successor to Obama. The Senate has no right to turn Burris away. What they did today is a CRIME.

Rod, NC (Sent Tuesday, January 06, 2009 2:40 PM)

I am offended that some people of the public are accepting that race is a factor in this issue. Before Burris was even selected by the accused governor the Dems made it clear that they wouldn't accept anyone appointed by Blagoevich. Any one believing that race is the main issue in rejecting Burris is allowing Blagoevich to 1) drag the Dems in to the mud because he is angry they are turning away from him 2) detract from the issue of his own corrupt atttempts to sell a senate seat. How about we all focus on the real issues: Can the senate legally reject a candidate from a sitting governor and what would the legal precedent mean if the senate can reject someone? Additionally, I am certain that there are concerns about Burris being electable in the 2010 race. It may not be legitimate for the senate's consideration in the seating of Burris but I am sure it is on Democrats minds.

Ken, Cedar Rapids, IA (Sent Tuesday, January 06, 2009 2:40 PM)

So let me get this straight - since Gov. Richardson of New Mexico is under grand jury investigation (hence is declination of the Sec of Commerce post), if one of the New Mexico Senators dies or resigns the Senate Dems won't seat whoever Richardson appoints? If you believe that, I have some IndyMac stock to sell you. Dems may be properly mad at Blagojevich, but this is politics not Constitutional Law.

Tom Neuhaus (Sent Tuesday, January 06, 2009 2:41 PM)

The people of Illinois deserve representation, what happened to innocent until proven guilty. I'm very disappointed in the democrats.

Craig, Lancaster, CA (Sent Tuesday, January 06, 2009 2:41 PM)

Gov. Blagojevich's powers have not been stripped, and he has the legal authority to appoint Burris, or anyone else who is qualified to serve as a US Senator. This has turned into a political bomb which could wind up exploding in the Senate's lap.

John Greenup, Crestwood, KY (Sent Tuesday, January 06, 2009 2:41 PM)

Burris is so dumb couldn't win an election. So he wants to take this. Mr White the S.O.S. did the right trhing and not sign his papers. This thing about race is just BS. Bobby Rush was out of ,line to do so. It isn't a black seat. I'm a person of color,and that is wrong.

doc4600 Chicago (Sent Tuesday, January 06, 2009 2:42 PM)

Burris has not been certified by the Secretary of State of Illinois as the appointee. Granted, this is normally a technicality, it is still a requirement in state law that has not been fulfilled. The Illinois Secretary of State has stated that he will not certify anyone appointed by this governor.

By the way, Jesse White, the Illinois Secretary of State is black. It's not about race.

As an embarassed Illinoian, I can say that in this case, where there is no one defending the governor, the fact that he has been credibly accused of this wrongdoing removes his credibility in making this level of appointment.

Gordon, Chicagoland, IL (Sent Tuesday, January 06, 2009 2:42 PM)

on a strictly grammatical note, there's a subject-verb problem in the lead sentence. the phrase "a number" takes a plural verb (whereas the phrase "the number" takes a singular verb), so the clause "there's a growing number of legal scholars" should read "there are a growing number." interestingly enough, an accompanying msn article on this ("Burris rejected in bid to claim Senate seat") has a pseudo-cleft sentence that's missing it's principal verb (provided here in brackets): "But if what Burris really wanted [was] a circus, he got one."

anonymous (Sent Tuesday, January 06, 2009 2:43 PM)

Burris couldn't get elected on his own and he's too stupid to realize that Blagojevich just used him so when he goes to court on criminal charges he can "say" that he had no intentions to sell the Senate seat because "he gave it to a 'nobody'... see?" What person in their right mind would want to accept a seat by someone who is going to be impeached? Burris is only pushing the issue because he knows he can't get elected into office, period.

kvan (Sent Tuesday, January 06, 2009 2:43 PM)

I think the refusal was technically because his papers were not in order. Specifically, his appointment was signed by the governor, but not also by the Illinois Sec. of State. I am naive on political law here, but apparently that is required to be seated. The rest of the objection stuff is media/senate fluff I think.

Marc, MN (Sent Tuesday, January 06, 2009 2:43 PM)

Oh please to all of you siding with the Burris appointment. From a girl from Chicago, blocks from Blago's house (and down the road from his wife's development with Reszko), let the people of Illinois elect a representative. Appointments should always only be temporary. Blagojevich is the dirtiest govenor we have had...and our last one is in prison. He should not be making decisions for the people of Illinois. If Burris wanted to be in the Senate, he should have advocated for an election, and then ran in it.

They are trying to turn this into a race issue here. It's sickening. As a country, and state, we just elected Barack Obama based on his qualifications, not his race, yet we are supposed to accept Burris based on his race, not his qualifications.

If he is seated, I will be overwhelmingly disappointed.

Windy City Girl, Chicago IL (Sent Tuesday, January 06, 2009 2:43 PM)

He has been appointed by a sitting Gov. it is unconstitutional to block his appointment period. But since when did the constitution get in the way of politics anymore really? Observing the constitution went out of "style" a long time ago, how can one respect a government that does not follow its OWN contract with the people it is suppose to represent and SERVE!

Rob, Syracuse, NY (Sent Tuesday, January 06, 2009 2:44 PM)

So much for the legal precedent of "innocent until proven guilty" though I think Blago is a snake that needs stomped on.

Glenn, St. Louis, MO (Sent Tuesday, January 06, 2009 2:44 PM)

Since when is a man guilty, OR impeached (as in this case) until he has had his day in court? Blagojevich has been tried in the Press! He is still the Govenor. His appointment should stand.

Dot, Glen Spey, NY (Sent Tuesday, January 06, 2009 2:44 PM)

Just when it seemed the Democrats were gaining the favor of voters it seems they will find a way to alienate "Main Street" again. Legally I believe Mr. Burris is entitled to the seat.

c, starinsky Canonsburg, PA (Sent Tuesday, January 06, 2009 2:44 PM)

What about States Rights? Hasn't there been controversies about this before? We need to see who won out then.

Ron, Bicknell IN (Sent Tuesday, January 06, 2009 2:45 PM)

I think the Senate, as a body, has proven itself to be a dispicable lot full of premadonnas who more often than not are undeserving of their titles.
RE

Robert E. Hilgendorf, Low Gap, NC (Sent Tuesday, January 06, 2009 2:45 PM)

I think we all really need to re think what is happening with our so called political leaders. These school children antics are continuing to make or country look bad. Does anyone have any integrity any more? or leadership?

Mimi, Ramona, CA (Sent Tuesday, January 06, 2009 2:45 PM)

It is both obvious that the US Senate, perhaps both Democrats and Republicans, but it doesn't matter which, have no regard for the US Constitution, which, if I read it correctly, does not give anyone except the State of Illinois the right to determine who appoints and who is appointed as a replacement in the Senate. It is also obvious that some of the bloggers have no knowledge, or at least very little respect, for the very document we all give lip service to as the law of our land. By the way, this is not just connected to this one issue of replacing a senator. Sadly, tragically, and dangerously, it applies to much of the remainder of the actions of all branches of our federal government, for quite some time. LE

Larry King (Sent Tuesday, January 06, 2009 2:45 PM)

It is very sad. Mr. Blagojecich is still Governer and has a power to select somebody for vacant senat seat. Mr. R. Burris is very good choice. He has been public servant for many years and has excelent reputation. I think Mr. White should think twice what did he do? VERY BAD DEMOCRATIC GAME.
vito

Witold Sloniewicz Fort Myers Beach FL (Sent Tuesday, January 06, 2009 2:45 PM)

A vast majority of those in office now are crooks. So why not add an honest one to the bunch.

Big C (Sent Tuesday, January 06, 2009 2:45 PM)

You can not circumvent the law just because you don't like the circumstance. Sitting Gov. can appoint, if you don't like the law "DUE PROCESS". The Senate is wrong.

Bernard Ward, Dothan, AL (Sent Tuesday, January 06, 2009 2:46 PM)

Does this mean that Blago has no power at all? I don' think so. He is still govenor. The Dems just have screwed up. I guess bill Richardson has no power left either.

Mike, Ohio (Sent Tuesday, January 06, 2009 2:46 PM)

It is my understanding that after the governor of IL makes an appointment of a person to finish out a vacated senate seat, the Sec of State of IL must certify that appointment. To my understanding the Sec of State of IL has refused to perform this certification. If this is true then MR. Bussis does not have the proper documentation and as a prior AG of IL he should be aware of that

rick, Winston-Salem, NC (Sent Tuesday, January 06, 2009 2:46 PM)

I am not a legal scholar, and do not condone what the governor is accused of, but a person is innocent until proven guilty. Therefore until he voluntarily steps down, is convicted or is impeached, he has the responsibility to carry out the duties of the offices in which he was elected. There are several other issues that the Senate needs to worry about...this unjust war, this economy. Do our congressmen and congresswomen stop functioning if they are accused of some wrong doing?

Benard Simelton, Harvest, AL (Sent Tuesday, January 06, 2009 2:47 PM)

What ever happened to "Innocent until proven guilty."

alex, rutherford nj (Sent Tuesday, January 06, 2009 2:47 PM)

This is starting to get silly. Burris is going to hang on no matter what, he has nothing to lose. The appt may be unwanted but Blagojevich is still governor until someone figures out how to remove him.

The Senate Dems have been thwarted and need to suck it up and move on, find someone to run against Burris down the road. This is bad behavior all around but there are many more important things to deal with.

KH, HI (Sent Tuesday, January 06, 2009 2:47 PM)

I though in this country a man or women was innocnet until proven guilty. Mr. Blagojevich has not been proven guilty as of yet and he is still the govenor. The appointment should stand as long as it is legal, the things Mr. Reid should put up a fight about he does not, why now does he want to fight?

Sighn H (Sent Tuesday, January 06, 2009 2:47 PM)

I think Blagojevich is guilty of wrongdoing - BUT he is still considered, in the eyes of the law, innocent until proven guilty beyond a reasonable doubt in a court of law. If Illinos does not want its Governor to have gubernatorial power while under a criminal indictment then they need to change Illinois state law. What if the then Republican controlled House had refused to seat impeached judge Alcee Hasigns after he was duly elected to Congress? The charges of RACISM would have been deafening! DOUBLE STANDARD HERE!

Dan Garrett, Baton Rouge, LA (Sent Tuesday, January 06, 2009 2:47 PM)

Rob, Syracuse, NY (Sent Tuesday, January 06, 2009 2:47 PM)

Not again, Congressional members! We may not like what Governor Blagojevich is accused of doing, but he is still governor according to the law and the voters of his state. He has chosen someone to represent the seat of the former senator and until some process has removed him from office, law is law. Whether we like it or not, "legally" he is right to appoint someone. We are "suppose" to be a nation ruled by laws. Let's rule on what we know instead of what we don't know. Let fairness and justice rule the day. The American people deserve nothing less. Common sense...don't leave home without it.

Ken, Ky (Sent Tuesday, January 06, 2009 2:48 PM)

I think we should through out all the politicians and get a fresh start. Our country would be better off and much richer. If we could have someone in office who would care for the people and not the OLD MIGHTY DOLLAR. Cut salaries in Washington and you would see which one cares for the people.

EJ Sulphur Springs, TX (Sent Tuesday, January 06, 2009 2:48 PM)

Government needs to "stop" making up the LAWS as they go. When something happens that the Government entities disagree with, they don't wanna follow the law; instead, they chose to "rewrite" the law! This is absurd! Our economy is troubled!!! My word, can you all find something better to fight about. Its n/fair to the "people" of the United States. The Law is the Law!!!!!!! If you can't change it for the little people, why change it for the Government who represents the people. You all are picking what's good and what's bad and are not regarding the law!!!!!!! This is why the United States is off balance - people think they have a right to change what is already written in law and/or violate people "civil rights." what's next????????

Tonie (Sent Tuesday, January 06, 2009 2:49 PM)

the facts are the facts. Blagojevich is still the govenor and has full power to discharge his duties. Burris meets all the standards and has the credentials. Burris is in fact the new senator of Il. My hope is that Burris has fortitude to force them to do their jobs.

Jack hyden Warsaw, Indiana (Sent Tuesday, January 06, 2009 2:49 PM)

Selling a senate seat for $1M is based on the principle of "What's in it for me?" as opposed to what is in the best interests of Illinois and the US. But after that, so much gets pretty gray. Perhaps it is not the principle but the blatancy of the $1M price tag. For the purpose of argument, let us assume that Gov. Janet Napolitano is the best choice for Sec. of Homeland Security. But would she have been selected if she had supported Sen. Clinton for President or even Sen. McCain? Maybe the way to solve this is to require a special election paid for by the party that takes a seated governor or senator to Washington. That would keep the Senate untainted. After all, the people of Illinois, Arizona, etc. have already paid a staggering price in diverted attention while their elected officials ran for President. I also would approve a law that requires an elected official to resign his position before accepting the nomination of his party for US President. That would allow the state to elect his/her replacement at the general election. Let the candidate's party pay him/her a party candidate salary and severance package in the case of a lost election. Too short a time to run for the Senate? It just might be the best election and would certainly be much better than the current situation.

Albion Hargrave, Phoenix, AZ (Sent Tuesday, January 06, 2009 2:50 PM)

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