Federal Judiciary

Burris will enter Senate

By Akin Gump Supreme Court Practice Group

Senate Democratic leaders avoided a constitutional showdown over their authority to judge the legitimacy of a newly appointed senator from Illinois, Roland W. Burris, agreeing on Monday to allow him to be sworn in later this week.  The decision apparently rested at least in part on an Illinois Supreme Court decision last Friday, finding that Burris’ appointment was fully legal under state law.  (See this post discussing the state court’s ruling.)

In addition, although not publicly mentioned, Senate leaders apparently were reacting to some critics who had argued that race — Burris is an African-American — was a reason the leadership was refusing to accept Burris as an appointee of embattled Illinois Gov. Rod Blagojevich.  The leaders had strongly rejected that claim.

On Monday, two statements signaled the end of the controversy.

First, the Secretary of the Senate, Nancy Erickson, said she had told the Senate’s leaders that Burris had submitted all the necessary documents to become an appointed senator.  That statement is here.  Earlier, Erickson had found that Burris’ appointment did not satisfy Senate rules because one document from Blagojevich did not have the signature of the Illinois Secretary of State, Jesse White.  The state Supreme Court last Friday found that that was not necessary to satisfy Illinois law.

Second, the two top Democrats in the chamber, Sens. Harry Reid of Nevada and Dick Durbin of Illinois, said the appointment had now been “validated,” and so Burris was “the Senator-designate from Illinois,” to fill out the two years remaining in the Senate term after President-elect Obama resigned the seat.  The leaders said Burris will be “sworn in and formally seated later this week.”  The Reid-Durbin statement is here.

After the Illinois court had ruled that state law had been satisfied in the appointment, Burris’s lawyers had warned that, if the Senate continued to refuse to admit him, they would sue in federal court to challenge the exclusion under the Constitution.

The Democratic leaders made a point of saying that Burris would be seated “barring objections from Senate Republicans.”  That put the onus on the chamber’s GOP members to block the seating of the only African-American now in a position to become a Senator for the 111th Congress.

Burris would have to run for election in 2010 in order to hold the seat.  Earlier, he had indicated that he would seek a full term, but has since expressed some reservations about dong so.

Full post as published by SCOTUSBLOG on January 12, 2009 (boomark / email).