Bench Memos

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A Very Slender Reid to Lean Upon


Yesterday the Illinois Supreme Court was heard from in the case involving Roland Burris’s claim to be seated as the junior U.S. senator from Illinois, appointed by Gov. Rod Blagojevich.  The state’s high court denied Burris’s petition for a writ of mandamus ordering secretary of state Jesse White to “countersign and affix the seal of the state” to the appointment document signed by the governor.  Bad news for Burris?  You’d think so if you believe the bluster still being put out yesterday by majority whip Dick Durbin.  At a news conference, reports the Chicago Tribune, “Durbin said 125-year-old Senate rules demand that the secretary of state sign the appointment paperwork from Blagojevich, regardless of the Illinois court decision.”  But the Trib goes on to note that late yesterday, Reid and Durbin were seeking legal advice.

They needn’t look any farther than the Illinois Supreme Court’s decision yesterday.  In nine succinct pages speaking for a unanimous court, Justice Lloyd Karmeier holds that there is no cause for a writ of mandamus to secretary of state White because his signature is not required on such an appointment document under Illinois law.  The appointment is complete and valid without White’s signature.  Illinois law, pursuant to the Seventeenth Amendment which empowers state legislatures to choose either of two methods for filling Senate vacancies (by special election or executive appointment), envisions no necessary role for the secretary of state, who is required to countersign and seal “commissions” to state office issued by the governor, but not the governor’s appointments to fill federal Senate vacancies.

And Durbin’s claim that Rule II of the Senate requires the secretary’s signature is bogus, says the court.  The “recommended forms” include a space for the secretary of state’s signature, but “recommended” means what it says: “State officials are not required to adopt them, but ‘they may use [them] if they see fit,’” says the court, quoting Rule II itself.  A few pages later, Justice Karmeier adds, “no explanation has been given as to how any rule of the Senate, whether it be formal or merely a matter of tradition, could supercede [sic] the authority to fill vacancies conferred on the states by the federal constitution.”  So much for Durbin’s fixed rule of 125 years’ duration!  An 1884 rule can’t trump a 1913 constitutional amendment.

In a final dig at the unsustainable Reid-Durbin position, the justices “feel constrained to mention” that under state law, any person can request, for a nominal fee, any “record or paper” from the secretary of state’s office, complete with the seal of the state.  The governor’s appointment of Burris has been logged in the state record books, and is such a paper available on request.  As several media outlets are reporting today, Mr. Burris and his attorneys have taken the court’s hint, and now have a certified copy of the governor’s appointment, complete with the (machine-produced) signature of Mr. White attesting to its authenticity, and the state seal.

How much longer can Reid and Durbin hold out when the law and the politics are both against them?  A little over a week ago, in a disgraceful loss of nerve, I tempered my prediction that Burris would take his seat by saying it was “maybe now 49% probable” that the Senate Democrats would mire the matter in the bottomless swamp of the Rules and Administration Committee, seeking a delay until Gov. Blagojevich is removed and the lieutenant governor can make a competing appointment.  That hasn’t happened, and Lt. Gov. Jack Quinn has made noises about appointing Burris himself if and when the opportunity arises.

But the removal of the governor will take a little time.  I’m now predicting that the Illinois Supreme Court has effectively forced Harry Reid’s hand, and that before Barack Obama is sworn in as president, Roland Burris will be sworn in as his replacement in the U.S. Senate.


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