Wednesday, December 31, 2008

Defiant Blagojevich Names Obama's Successor: Decision Raises Political and Constitutional Questions

Embattled Illinois Governor Rod Blagojevich has defiantly named a successor to serve the remainder of Obama's Senate position. Any candidate that the governor named would have caused conflict, because many politicians, including Obama, have called for Blagojevich to resign and to refrain from naming a successor. But Blagojevich's decision to select former State Attorney Roland Burriss for the position presents even greater political complexity.

Race Politics
Burriss, who is black, would become the only black member of the Senate if his nomination survives a likely battle in the Senate. By picking a respected black politician to replace Obama, Blagojevich forces Democrats to either deny a Senate seat to a black politician or to legitimize his defiant exercise of authority over the process despite increasing demands that he leave office or otherwise decline to name a successor.

It appears that Blagojevich intentionally introduced race politics to the selections process. He first offered the position to Danny Davis, a black member of the House of Representatives, but Davis turned down the offer.

And during the press conference at which Blagojevich made the announcement regarding Burriss, Bobby Rush, a black member of the House of Representatives, stated that: “There are no African-Americans in the Senate . . . And I don’t think that anyone, any U.S. senator who’s sitting in the Senate, right now, wants to go on record to deny one African-American from being seated in the U.S. Senate.”

Rush also urged members of Congress not to "hang or lynch the appointee as you try to castigate the appointer." In response, Blagojevich added: "Feel free to castigate the appointer but don't lynch the appointer. I am not guilty of any criminal wrongdoing!"

Constitutional Questions
Blagojevich's decision to name a successor also complicates an already complex legal situation. Senate Democrats vowed to reject any candidate that Blagojevich names. They claim the authority to do so based on Article I, Section 5 of the Constitution, which states that "Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members . . . ." But the Supreme Court narrowly interpreted the scope of this provision in Powell v. McCormack.

In Powell, the House of Representatives refused to seat Adam Clayton Powell of New York, who faced accusations of financial impropriety. John McCormack, the Speaker of the House, claimed such authority under Article I, but the Supreme Court (in a 7-2 ruling) held that the Constitution only gives each chamber the power to judge those qualifications specifically listed in the constitution (e.g., that candidates for Congress meet certain age or residency requirements and that they were chosen under prescribed procedures). The Court's narrow interpretation of Congressional authority under Article I, Section 5 favors Blagojevich and Burriss.

Even if a candidate meets the requirements to occupy a seat in Congress, the Constitution nevertheless permits each house to "expel" a member. Expulsion, however, requires a requires a 2/3 vote and a showing that the candidate for expulsion has engaged in wrongful conduct

Given the public sentiment against Blagojevich naming a successor, at least 2/3 of the Senate probably does not want Burriss to take office. But unless these Senators can demonstrate that Burriss has engaged in improper conduct, they would not have a legitimate basis to expel him. If the Senate refuses to acknowledge the appointment, and Burriss does not withdraw his acceptance of the offer, then Burriss would have to initiate litigation seeking an injunction barring the Senate from refusing to seat him.


Malnurtured Snay said...

I've been wondering what Burriss was thinking accepting the nomination -- he's tainted by saying "yes."

Darren Lenard Hutchinson said...

Welcome back malnurtured one! I hope you have had a great holiday season.

I agree with that argument -- what was he thinking. I read that he has been somewhat unsuccessful winning campaigns lately. Maybe he thought this is my last chance for something better. Also, given the amount of dealings he has had with Blago, maybe he felt he was doing him a favor. Blago was clearly trying to find someone black to take the position. This is all very CHICAGO.

Anonymous said...

I'm not a lawyer but if Blago is still the legal governor it is his right to appoint the new Senator. Politics is dirty, always has been and always will be.

All this other nonsense is just the incoming Presidential Administration trying to pick the person they want intead of letting the elected Gov of the state of Illinoise do what he was elected to do.

Darren Lenard Hutchinson said...

Lida -- your very succinct argument is right on the money, from my perspective. The Illinois Supreme Court refused to declare him incompetent to hold office; the legislature has not taken away his authority to pick the replacement; he has not been impeached; and he has not been convicted of a crime. This is just Reid/Obama trying to divest Blago of authority. I say this without condoning any criminal activity by Blago, but the constitution guarantees due process to everyone. And the presumption of innocence is a hallmark of due process! Liberals who want to toss aside this principle are behaving SHAMEFULLY. But then again, look how sexist they were during the primaries.

1950 Democrat said...

At his age, Burris might be more likely to retire after finishing this term than to run for re-election, making him in effect a caretaker.

Is Burris really clean, and why are Reid et al against him (other than the fact of Blago appointing him)?

Darren Lenard Hutchinson said...

According to a Chicago friend, Blago alienated a lot of Illinois politicians long before the scandal. Obama was one of them. But he clearly has a lot of "friend" -- or I guess I should say allies -- in the state as well.

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