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Senate Leadership Weighs Blocking Burris Appointment

December 31, 2008 at 6:35 PM EDT
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After embattled Illinois Gov. Rod Blagojevich's named Roland Burris to fill President-elect Barack Obama's vacant Senate seat, Democratic Senate leaders claim they will invoke their constitutional power to block the appointment. Analysts discuss the situation's legal and political implications.
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RAY SUAREZ: And to the showdown over the appointment of Roland Burris to fill President-elect Obama’s Senate seat.

Yesterday, Illinois Gov. Rod Blagojevich and the Senate’s number-two Democrat, Dick Durbin, staked out their positions.

GOV. ROD BLAGOJEVICH (D), Illinois: The law requires that the governor make an appointment of a United States senator in the absence of any other law that would have given the people of Illinois a chance to be able to elect the successor to the United States Senate.

And when the legislature didn’t act on the legislation they said they were considering, which I supported, which would have given the people the right to be able to elect the next senator, failing that, then it’s the governor’s responsibility to fill the vacancy.

SEN. DICK DURBIN (D), Illinois: On December the 7th, the entire Democratic Senate caucus, all 50, unanimously sent a letter to Gov. Blagojevich making it clear that we would not accept his appointment to fill this vacancy.

We made it clear, as well, that the only way this vacancy can be filled is if Gov. Blagojevich steps aside and gives that authority to the lieutenant governor under the Illinois constitution.

Gov. Blagojevich knows that. What we saw today was an act of political defiance, where he is going to try to have his way, despite the fact that the Senate Democratic caucus has stated clearly that it will not seat his choice for this position.

Constitutional precedents for case

RAY SUAREZ: Can the Senate refuse to seat Roland Burris when the new Congress convenes next week? And what would be the political implications of taking such an action?

For that, we turn to political reporter Carrie Budoff Brown and Abner Green, professor at Fordham University's School of Law in New York.

Professor Green, the Senate has been adamant in saying it won't seat Roland Burris, but a lot of people are wondering, can they do that? What does the Constitution say?

ABNER GREEN, Fordham University School of law: I think the best argument is that they have to seat him. He fits the qualifications stated. He's over 35. He's a U.S. citizen for nine years. He's a resident of Illinois. And the 17th Amendment process has been followed. The Illinois legislature gave the governor the power to make this appointment, and he made it. So on a sort of strictly formal reading of the Constitution, they have to seat him.

RAY SUAREZ: Are there ways of reading "qualifications" and the article in the Constitution that sets out the Senate's ability to regulate its own members that might give Harry Reid and the Democrats some daylight here?

ABNER GREEN: Right, so, first of all, they have a case against them called Powell v. McCormack, involving the New York City Congressman Adam Clayton Powell.

The House had refused to seat him because of allegations of corruption. And the U.S. Supreme Court held that qualifications only means the age, citizenship, and residency criteria and, therefore, that the House had to seat Powell. So that cuts against what Harry Reid wants to do.

The argument in his favor is that the Constitution also gives the Senate the power to judge the elections and returns of its members. Now, that would clearly apply in a case where the Senate thought an election was corrupted or tainted or perhaps a contested election.

The question is, can they apply that language, elections and returns, to a case of an appointment under the 17th Amendment? Remember, the Constitution was written in 1787. The 17th Amendment came about in the early 20th century.

And so what they're trying to do is connect up their power to judge elections and returns to their power to judge the appointment, deeming it tainted in this situation.

Senators say process is tainted

RAY SUAREZ: Carrie Budoff Brown, what grounds are senators talking about in their refusal to seat anyone designated by Gov. Rod Blagojevich?

CARRIE BUDOFF BROWN, Politico: Well, it is the fact that there is a -- they claim that the process is tainted, the appointment itself is tainted, and that's where they're making their argument, that Gov. Blagojevich, anybody who he appointed, would not be acceptable to them.

And that's where they're laying down the marker. And that's why you saw Harry Reid jump out so forcefully and so quickly yesterday. They laid down a marker several weeks ago vowing pretty much not to give Blagojevich credibility. And if they had accepted this appointment, they would be going back on what they said several weeks ago. So I think that's why you're seeing that now.

RAY SUAREZ: How does this square with the quiet reaction to the indication and the trial of the sitting senator from Alaska just a few weeks ago?

CARRIE BUDOFF BROWN: Sure. I mean, there's quite a few examples of that in the last year of senators who have run into legal troubles and they have been able to stay in the Senate. However, here you're seeing a case where there's someone coming into the Senate versus somebody who is already there.

And in those cases with Sen. Stevens, until he was indicted, charged, you didn't see that movement for him to be ousted from the Senate. So, again, you know, Harry Reid and Dick Durbin, his second-in-command, they're talking about the process being troublesome, not so much the person.

RAY SUAREZ: Professor Green...

ABNER GREEN: Ray, if I could...

RAY SUAREZ: Go ahead.

ABNER GREEN: If I could jump in on that, I mean, they had a little cover with Stevens. They had to wait to see if he was going to be re-elected. And, of course, he wasn't, so they were spared that.

If he had been re-elected, and if he had refused to resign, then there's a separate provision in the Constitution that gives the Senate the power to expel a member by a two-thirds vote, but that provision did not apply to whether to admit a member. It's separate.

Race also a factor

RAY SUAREZ: Right. Well, Professor Green, this has to do with the only one vote that matters, which in Illinois law is the vote of Gov. Rod Blagojevich. If the Senate looks across the landscape and sees that Illinois law was followed, does it have any precedent for not seating a member?

ABNER GREEN: You know, I don't think so. They have to make this creative argument of extending their power to judge elections and returns to their power to judge a 17th Amendment appointment.

I think what they should do is let Patrick Fitzgerald and the Illinois legislature pursue Blagojevich. And if they believe that Burris himself is untainted and the appointment of Burris himself is untainted, then they should seat Burris. That's, I think, the best compromise here.

RAY SUAREZ: Carrie Budoff Brown, yesterday we saw Congressman Bobby Rush join the governor and the former attorney general, Roland Burris, almost in daring the United States Senate not to seat the man who would become the only black member of that body after the departure of Barack Obama.

CARRIE BUDOFF BROWN: Yes, and what you saw there was a clash probably in the most clearest example yet between the civil rights era leaders, such as Bobby Rush, and the post-civil rights leaders, such as Barack Obama.

I mean, we saw this tension throughout the campaign. And I think what happened yesterday at that press conference was one of the clearest manifestations of this tension that exists within black political leadership.

And that was really a direct challenge to Obama and to folks in the Congressional Black Caucus who will be called to account on where they stand on this and whether the Congressional Black Caucus will go with Barack Obama or Bobby Rush. And I think where they come down in the next few days will have a impact.

Democratic Senators are united

RAY SUAREZ: Congressman Rush tried to separate Roland Burris from Gov. Blagojevich. Are any senators willing to buy that argument?

CARRIE BUDOFF BROWN: Not yet, no. I mean, Democratic senators are pretty united, at least so far. I mean, it is New Year's Eve, so we haven't heard from too many senators yet. But right now there's a pretty united front amongst the Democratic caucus.

RAY SUAREZ: Professor Green, there's every indication that Roland Burris is heading to Washington and will attempt to take his seat when the 111th Congress convenes next week. If he is not allowed in, what options does he have?

ABNER GREEN: So it seems to me, if he wants to pursue this -- and he might be well advised not to -- but if he wants to pursue it, he could bring a lawsuit. And then it would work its way through the courts.

And the big question for the courts would be, do they even want to hear this or do they want to deem it a so-called political question, which would be simply left to the Senate?

Now, in the Powell case, the court said it was not a political question. It was a legal question. But arguably this case could be different, because the process supposedly here is tainted, whereas in the Powell case they were concerned about the member himself being tainted. It's a thin distinction, but it might be a good one.

RAY SUAREZ: Professor Abner Green, Carrie Budoff Brown, thanks a lot.

CARRIE BUDOFF BROWN: Thank you.

ABNER GREEN: Thank you, Ray.