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The case against seating Burris: Too Clever By Half?

By Jack M. Balkin

I truly regret to report that I am unpersuaded by the arguments made by my friends and usual compatriots Jack Balkin, Mark Tushnet, and Akhil Amar (I don't know Josh Chafetz, the co-author of the Slate article defending the Senate's prerogative to refuse to seat Burris). I suppose it's true that the Senate could/should consider the bona fides of a gubernatorial appointment if there is good evidence that it was procured by criminal means, including bribery. The problem is that there is not a scintilla of such evidence in this case. Governor B. might well be guilty of "attempted sale of the Senate seat," but it's clear that it didn't work, and that he, clever politician that he is, reached out to strengthen himself with a key constituency and, an added bonus, to discomfort many of his erstwhile Democratic Party allies. I don't see how one can mount a good-faith argument against seating Burris unless one is willing to open each and every gubernatorial appointment to some kind of "good-government" scrutiny. Consider, for example, the shameful appointment of Lisa Murkowski to the Senate by her father, the former Senator who became Governor of Alaska. There is no plausible evidence that anything other than nepostism explains the appointment. Should the Senate have been empowered to decline to seat Ms. Murkowski (who was subsequently elected, though with a minority of the total vote, given the presence of minor parties in the race)? Should the motives of Gov. Patterson be subjected to relentless scrutiny if he bows to pressure to name Caroline Kennedy as a tribute to a dying senator and, in addition, to get access to the Bloomberg and Kennedy donor list that presumably comes with that appointment?

Given the capabilities of the analysts in question, I certainly don't question that the arguments made by Tushnet, Balkin, Amar, and Chafetz are within the realm of plausibility, and I certainly agree that senators have the raw political power torefuse to seat Burris (and, therefore, to deny the people of Illinois half their representation in the Senate for many months). But just as Jack has made his turn, wisely or not, to a form of "originalism," I find myself, given my own turn toward emphasizing the importance of "hard-wired" aspects of the Constitution, rather inclined to what some people might even denigrate as "mindless textualism." That is, I do believe that the text of the 17th Amendment, read in its most ordinary sense, allows a state to empower its governor to make a temporary appointment (even if I do concede that the Senate could refuse to seat the appointee if one thought that the governor had made the appointment as part of criminally corrupt bargain). Governor B. is the fully legal governor of Illinois unless and until he resigns or is impeached. To say that the untoward conduct of which he has been accused deprives him of the power that the Constitution authorizes Illinois to give him leads to all sorts of conundrums: If I am charged with violating an Illinois statute passed by the Illinois legislature and then signed by Governor B. in the last couple of months, can I claim that the statute isn't "really" legitimate because, after all, Gov. B. isn't really the governor anymore? That's obviously absurd on its face. But why, precisely? Is the answer that Balkin et al. are really defending the prerogative (and I use that word advisedly) of the Senate to offer what laypeople would find strained and hypertechnical readings of the Constitution in order to escape a political embarrassment? If so, I return to Murkowski? Why shouldn't the Senate have risen as one to say that such blatant nepotism violated our "Republican Form of Government." Akhil has a brilliant discussion in his book America's Constitution on the Founder's rejection of dynasticism.

I have been railing for the past several months against the almost criminal stupidity of the Inauguration Day Clause, but I've never suggested that there is a clever way of working around it in the absence of a willingness of President Bush and Vice President Cheney to resign first. If one feels "stuck" by that incredibly stupid clause, with consequences far, far worse than allowing a presumptively competent, if somewhat superannuated Illinois politician to serve a couple of years in the Senate, then I think we should recognize that the 17th Amendment, too, generates a relatively hard-wired rule that limits the possibilities of further Senate scrutiny and the political mischief it invites. (Imagine, for starters, that the Senate is closely divided and that accepting the appointment would change the political control of the Senate (as in 2001) or provide/prevent a "filibuster-proof" majority.)

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Full post as published by Balkinization on January 01, 2009 (boomark / email).