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In the face of accused Governor Rod Blagojevich's December 30th appointment of former State Attorney General Roland Burris to the US Senate has caused quite an outrage in some circles. But why?
No laws have been broken. Like it or not, Blagojevich is a sitting Governor, and has the constitutional right to make the selection. Blagojevich is charged, and (as of this writing or his announced decision) has not yet been indicted. He has not resigned the Governorship. If we as Americans hold the notion of "innocent until proven guilty" dear to our hearts, we must accept this situation no matter how it may gnaw at our consciences. This is a part of our rule of law, and to not accept this lawful appointment flies in the face of what we hold dear in our democracy.
And for many, this sticks in their craw. State Attorney General Lisa Madigan filed an emergency request to the Illinois Supreme Court, indicating that Blagojevich was "unfit" and included a temporary restraining order that would have immediately stripped him of many of his powers, including the authority to appoint someone to fill the United States Senate seat. On December 18th the Court denied the request as the complaint had no factual basis.
Now the Congressional leadership has stepped into the fray, indicating that the Senate will not set Mr. Burris. This is, at best, constitutionally dodgy. In accordance with the Supreme Court's 1967 Powell v McCormack decision, Congress may only use the criteria of residency, age and citizenship to challenge the seating of Burris. This does not seem to apply.
The only other clear approach would be to remove Burris by expulsion. This requires that the Committee on Standards of Official Conduct investigates allegations that a Member violated "any law, rule, regulation, or other standard of conduct applicable to the conduct of such Member ... in the performance of his duties or the discharge of his responsibilities" and a two-thirds Senate vote. Now the onus is on a committee to identify Burris's actions that fit into those categories ... and as Burris has not yet been seated, how likely is that?
And there have been calls for a "special election" to set things right. But again, what legal basis exists to support this approach? None that I can see.
It's clear that U.S. Attorney Patrick Fitzgerald had a tough decision to make in this case. He had a choice, to either allow Rod Blagojevich to actually sell Barack Obama's vacant seat or to stop him before he did it. Clearly, the charges would "stick" much more cleanly if the money had changed hands and the congressional seat was sold. Yet the result would be the same ... a legal appointment by a duly elected and sitting Governor ... but the appointment would be the result of fraud and not by merit. Once arrested, Blagojevich could still make an appointment, but the cloud of suspicion would force him to do this appropriately ... which he did. Fitzgerald's hand was forced by timing, and the result is a relatively dirty Senator vs. a relatively clean one. It will not help his case at trial time, but in respect to overall democracy it was a good call.
Governor Rod Blagojevich legally made this appointment as his responsibility indicated by the Constitution of the United States. Do we live by our laws, or only when they suit our opinions in specific instances? Like it or not, preserving our democracy does not always equate to making everybody happy. Roland Burris should, and will be the next US Senator from Illinois.
