Walter Dellinger: Seat Burris

Roundup: Media's Take

[Walter Dellinger, a lawyer, was the head of the Justice Department’s Office of Legal Counsel from 1993 to 1996.]

THE scene of Roland W. Burris being escorted from the Senate by the Capitol police on Tuesday could be only the first act of an unpleasant and distracting drama. But in the days since Mr. Burris’s appointment to Illinois’s junior Senate seat was announced by that state’s scandal-tainted governor, Rod Blagojevich, it has become clear that the Senate’s power to reject Mr. Burris is, at best, highly debatable. The wisest course for the Senate is to end the dispute by accepting the appointment.

A similar situation arose in 1967, when the House of Representatives refused to seat Adam Clayton Powell Jr., the outspoken congressman from Harlem accused of personal misconduct involving public funds. I was clerking for Justice Hugo Black two years later when he joined in the Supreme Court decision that the House lacked the power to deal with Powell’s conduct by refusing to seat him.

In Justice Black’s view, one of the worst abuses of power in England resulted from parliamentary majorities wrongly refusing to seat dissident legislators. That experience makes me very wary about the Senate’s barring a person from taking a seat unless its authority to do so is clear. Here it is not.

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....

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