by Frank James
Democrat Roland Burris should be seated by the Democratic-controlled Senate, says the highly regarded lawyer Walter Dellinger, who headed the Justice Department's Office of Legal Counsel in the Clinton Administration.
He makes the same logical case many others have. It boils down to the law is the law. An excerpt from his New York Times op-ed:
The Constitution's text is simple enough: "Each house shall be the judge of the elections, returns and qualifications of its own members." Since no one disputes that Mr. Burris, a former Illinois attorney general, possesses the constitutional qualifications of age, residency and citizenship, the remaining issue is whether the Senate can adjudge Mr. Burris not to have been properly appointed. Although federal prosecutors are seeking a corruption indictment of Mr. Blagojevich, he is in fact still the governor. The charges that he sought bribes to appoint certain candidates to the Senate do not automatically render illegal other official acts of his office like signing laws or pardoning criminals. And because there is no evidence that a bribe was solicited from, or proffered by, Mr. Burris, his appointment is presumptively lawful.
Nor do the other arguments against Mr. Burris's appointment hold up. The contention by the Democratic leadership that Mr. Burris can be denied a seat because the Illinois secretary of state refuses to sign his appointment papers is without merit -- it would confer upon secretaries of state absolute veto power over governors' appointments.
Postponing the decision until Mr. Blagojevich's removal and replacement by the lieutenant governor is not a clean solution either. Mr. Burris will argue that if his appointment was valid, Illinois law entitles him to the seat until the 2010 election. In his view, there would be no vacancy for the new governor to fill. Having two rivals, one appointed by each governor, disputing who is the rightful senator might be the worst possible outcome.
Here's Dellinger's ultimate smackdown of the Senate. He suggests that the Senate risks acting similarly to the Bush-Cheney White House during its two terms, pushing past the bounds of the Constitution in an ends-justifies-the-means approach.
A snippet:
As we emerge from eight years of extravagant executive claims of unreviewable authority, Congress should be especially scrupulous about having a solid legal basis for controversial actions.
Dellinger is the kind of lawyer who would normally be making the case for Senate Democrats. That he's against them on this is just another indication of how difficult it will be for them to continue blocking Burris's path.
Comments
So why then are these US Senators so unwilling to seat Roland Burris?
What are they afraid of?
Posted by: Springfield | January 7, 2009 9:56 AM
I'd have to agree with Solicitor General Dellenger.
It would be nice if our former Constitutional Law professor and President Elect would file a concurring opinion.
That would lay to rest this issue.
It's fun seeing the local O'Reilly wannabes on Fox in Chicago try to throw mudballs at Burris.
Their biggest mudball so far:
He told folk to call him "General" when he was Attorney General.
Horrors!
They conveniently omit that this is what the US Attorney General is customarily called , even in Congressional hearings.
Posted by: ornery | January 7, 2009 11:27 AM