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Bench Memos

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Looking for Legitimacy in All the Wrong Places



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Akhil Reed Amar and Josh Chafetz argue at Slate that the Senate can legitimately decline to seat Roland Burris under its Article I, section 5 power to judge the “returns” of Senate elections–and, they argue, of Senate appointments as well, made under the Seventeenth Amendment.  Jonah is right that their argument is “reasonable,” but in the end I don’t think it is persuasive.  It all turns on a somewhat tortured argument that, even if no direct corruption on Gov. Blagojevich’s part is discovered in his choice of Burris, there would nonetheless be a tainted appointment because it “seems apparent that there were candidates that Blagojevich refused to consider for improper reasons.”  In other words, because Blagojevich is plausibly accused of having sounded out other possible appointees for a quid pro quo–some seeming amenable to a bargain and others not so, but all such persons somehow ruled out after prosecutor Fitzgerald went public with his case against the governor–then any appointment Blagojevich now makes can legitimately be rejected.

This is creative but not convincing.  Why, for instance, couldn’t it be said that Blagojevich’s overtures exposed two classes of potential appointees–the crooked and the straight–and that any of the straight ones might now be appointed with confidence that no corrupt bargain has been made?  (In this case, the governor was performing a public service!)  And if Burris’s appointment was never in the cards, choosing him over the others previously discussed is only to the prejudice of those earlier candidates who fell in the crooked category.  No frustrated other candidates have been “corruptly” knocked out of the running except those who appear to be corrupt themselves.

The Seventeenth Amendment provides for special (impromptu) elections to fill Senate vacancies–if state legislatures want to do it that way.  If they don’t, then the executive is entitled to appoint to a vacant seat until an election is scheduled.  If the Illinois legislature got its act together, an election to fill Barack Obama’s Senate seat could be held mere weeks from now.  In the meantime the governor of the state has done what the Constitution calls on him to do.  It seems plain that Roland Burris is entitled to take his seat next week unless a direct corrupt nexus is found in the choice of him by the governor.

Twice I have predicted Burris will prevail and take his seat.  I still think he will.  But I will admit that a scenario almost equally likely–maybe now 49% probable–is that the Democrats will succeed in referring the matter to the Rules and Administration committee.  There a pretense of an inquiry will be put on, but the real business will be to delay until Illinois’s Democratic legislature can either schedule an election and/or remove Gov. Blagojevich so that an alternative appointment can be sent up by his acting successor.  (Delay is, after all, what senators do best of all.)  In the latter case the Democrats in the U.S. Senate can then pretend to act on a principle of legitimacy in preferring some Anti-Burris to Burris, as though the two competing appointees were like two candidates in a contested election whose outcome the Senate was deciding.  No principle, in truth, would be in play at all–just a by-any-means-necessary distancing from the Bacillus Blagojevich.  But it’s hard to come out looking spick and span when you’re willing to get this deep in mud.



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