Roland Burris Decision by the Illinois Supreme Court:
Prof. Brian Kalt (Concurring Opinions) has more on this; I read the opinion earlier today, and I generally agree with Kalt's post.
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I predict Burris gets seated some time next week.
They won't have the votes. He has not done anything wrong, other than embarrass Reid and Durbin.
A tailor made situation for GOP trouble-making.
Next stop US District Court. Let's see if they can get Powell distinguished. Doubtful but you never know.
I know. Harry Reid looks has been such an incompetent, and his tenure as leader of the Senate Democrats has been an utter disaster. Exactly four years ago, he took over leadership of the Senate Democratic caucus as Minority Leader for the defeated Senator Daschle. There were 45 Senate Democrats. Now he is majority leader of 59. Real disaster; if only I could fail at leadership like that.
What are Reid's accomplishments over the past 4 years? I'd put "avoiding indictment" at the top of the list, that's getting to be a rare talent on that side of the aisle. Has he done anything legislatively?
My feeling is that, for most observers, this will play as Reid being obviously and righteously angry at Blago's moves but then conceding that, under the due process of law, it was a lawful appointment. (That's assuming Burris is seated.)
I wrote "No Illinois court will grant mandamus to the benefit of such an unpopular person as Blagojevic" in this post.
The problem with most of the legal analysis here is that it's just that - it only asks "what is the law?" But legal analysis ignores the power of media image in determining how judges and legislators actually rule.
In today's world, a televised press conference has more persuasive value all the statutes and Supreme Court precedents in the world.
Powell is no help here, because in Powell the court only held that Congress could not augment constitutionally specified requirements: the word "Qualifications" was already defined in the Constitution, and the Senate was adding new substantive requirements. Here, the Constitution provides no requirement for what a valid "Return" is and so the Senate can view that it does not trust a "Return" unless there is a SoS signature.
The Illinois Supreme Court didn't say otherwise, just that, under Illinois law, Burris had been properly appointed. It suggested that ought to be good enough for the Senate, but didn't rule on that question, or claim that it had the jurisdiction to do so.
Man from mars:That would be a "flaw" if there were some dispute about "evidentiary standards," but there isn't. Nobody in the Senate, let alone the Senate as a whole, is debating whether Blagojevic actually appointed Burris.
Whether the Senate "can" do that or not, it has not done so, as the Illinois Court points out. There is no actual requirement for a SoS signature in the Senate rules.
And Powell is a help, because it points out that Congress cannot augment constitutionally specified requirements. In this case, the 17th amendment, which says that state legislatures, not the Senate, decide how to fill vacancies. If a state legislature says the governor gets to make the appointment, the Senate cannot overrule that decision and require that the SoS approve the appointment as well.
Would a Burris argument in state court that a signature was required have had any estoppel effect in a later federal proceeding? If so that may be why he did not argue to forcefully on that point in Illinois.
man from mars,
You are right that my prediction (which I made on the radio; I don't recall blogging about it until I admitted it in the post that EV linked) was wrong. But I think that you were wrong too. The Illinois Supreme Court's ruling did not give the mandamus, but it was clearly "to the benefit" of Blagojevich. It chastised the U.S. Senate repeatedly, and consistently reaffirmed the validity of Blagojevich's action. So I'm not really sure how you can see this decision as backing you up here.
All the Illinois court did was point out that in its view, the Senator was validly appointed. But the Senate can still read that opinion, and say "this is not a Return." Whether the Senate believes the appointment was valid is irrelevant.
One specific problem with the Illinois Supreme Court's theory might be (I don't know) that the Senate requires a signature, whereas the Court's suggestion would only yield a copy of the signature, not the signature itself.
The point is that the Court's opining about evidentiary principles and the Senate's constitutional role was all ultra vires. In rejecting Burris, the Senate made an interpretation of the rules. The Illinois Supreme Court cannot be second-guessing the Senate's own Rules. The parsing of the word "recommended" and the constitutional arguments are completely irrelevant to the issue of whether the Senate can or cannot reject the return.
The word "recommended" in Rule 2 isn't irrelevant at all if the Senate leadership purported to base its rejection of the return on Rule 2. Which it did.
Also, your argument might work if the full Senate had voted, but it hasn't. The Senate hasn't voted on (let alone rejected) the return yet, so the ILSC's opining on the validity of the return seems perfectly warranted to me.
Otherwise, Congress could simply circumvent Powell by setting up some requirement for newly-elected members that the states don't meet, and then claiming that the person can't be seated because he hasn't fulfilled the requirement for a valid return. ("Returns must be signed by the state surgeon general to be valid. Yours isn't. We're not seating you. What? Oh, you say that your state doesn't have a surgeon general? Too bad. We've judged your Return to be invalid, and we can't be questioned on that.") Sorry, but Powell says that they can't create additional qualifications.
1) What distinction do you think you're drawing here? A copy of a signature is a signature.
2) As the Illinois Supreme Court points out, the Senate does not require a signature. It's a recommended form, not a required one. Nonetheless, I would agree that if the Senate had rejected Burris's nomination on that basis, the Illinois Court would be powerless to overrule that misreading of the Rule. But the Senate didn't do any such thing.
Ok, if you say so.
I thought you measured success as majority leader by how well the Senate performed. Or how well you did in getting your agenda done.
By either measure, he has not done too well.
To be slightly fair, being majority leader is like herding cats.
I predicted early on that Ried would once again be forced to eat crow on this appointment. He never disapoints.
Burris and his legal team must be looking kind of sheepish at each other and saying "Man! How come we didn't think of that one ourselves?"
Ummm, no. Right after Burris forced Reid to bar him, Burris and his team just got a Supreme Court to say that Reid —the wimpy guy, the 'no blacks in my Senate' guy— was cheating and lying to keep Burris from his rightful, lawful appointed position. A Supreme Court ruling; it doesn't get much better than that.
They aren't playing politics or playing the media; it's both at once. Blagojevic and Burris are looking shrewder and more competent every day. Not only will Burris be seated, but he will carry his faction (certainly Jackson and Rush, possibly even Blagojevic) to win in the next elections.
BTW, with the focus on Illinois, has anyone looked at how Reid's polling in Nevada?
There are many legal instruments in which only an original document is allowed. Under the best evidence rule, for example, copies in certain situations are not allowed. I doubt most federal agencies allow copies of signatures - does the IRS? What about filings with the court? Or bank checks? Or wills?
It seems to me there are four different issues between discussed:
A. Was Burris's appointment valid?
Yes. But the issue isn't whether is is valid; the issue is who is judging that fact, an Illinois Court or the Senate.
B. Did the Senate determine Burris needed the SoS signature on a particular form?
Probably.
On the one hand, there was no formal vote to bar Burris and the rules are ambiguous.
On the other hand, the Secretary of the Senate in barring Burris was acting as an agent for the Senate, and the Senate later ratified his acts by not objecting to them (or by not allowing Burris in).
Furthermore, the force of 140 years of Senate tradition is a strong argument in favor of the Senate's interpretation being that a signature is required.
I think that "Yes" is the stronger answer here.
C. Is the Senate's requirement ultra vires under Article 1, Section 5?
Maybe not. If the Senate views a "Report" as a particular report on an appointment, then under Article 1, Section 5, it can require an original signature on that report as a condition of validity. It can view the signature as an authentication, if you like. Of course, it is more reasonable in this case for the Senate to allow the lack of a signature, but that does not mean that if it refuses to so allow, it is acting illegally or that there is any judicial remedy. This point can be litigated under Powell but is distinguishable.
D. Does the Illinois Supreme Court have authority to interpret Senate rules?
No.
Judging returns is expressly made part of Article 1, Section 5.
Courts disagree with factual determinations of matters in other jurisdictions all the time.
Does anyone or any judge outside a few courts actually think the WM3 guys are guilty, or that Beatty Chadwick has $2.5M? Probably not.
But jurisdiction always trumps facts in the law. An Illinois court cannot, for example, order a West Virginia prisoner released because in its assessment of fact - no matter how completely clear and irrebutable - the prisoner is innocent. This is true even if there was sworn testimony, video footage, the whole works: there is no jurisdiction. And even if the West Virginia courts agreed with the Illinois Court - what Illinois thinks has no bearing. A felon in West Virginia is still one in Illinois, even if Illinois can prove the felon is innocent.
Similarly here, the Illinois Supreme Court has made a great argument for why the appointment is valid, but the Senate need not listen to the argument. It should, of course, as the decision was persuasive and correct on that point, but it need not.
Since virtually all federal court filings are via ECF (electronic), virtually all federal court filings involve copies of signatures, as well as electronic signatures. One can file electronically with the IRS, too.
B. The Senate did not determine that Burris needed the SoS's signature; one cannot infer that they did from a mere temporary failure to overturn a clerk's decision. (In fact, they're almost certainly going to seat him.) Nor are the rules "ambiguous" on this point; there is simply nothing in them requiring a signature.
C. I assume you meant "Return," but I don't believe there's any legal basis for your argument. They could look at one particular Senator's document and determine that, because it lacked a particular signature when the relevant state's law required such a signature, it must be inauthentic; they cannot establish a categorical rule that a return must have such a signature. Nothing in the Constitution allows them to grant power to a state Secretary of State to veto a gubernatorial appointment.
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