Wednesday, December 31, 2008

Governor's choice vs. people's choice

Articles like this one have appeared, suggesting that Illinois Governor Rod Blagojevich's selection of Roland Burris to fill Barack Obama's Senate seat cannot be blocked by Congress. Writes David Savage, the author of the piece:

"Senate Democrats threatened this week to refuse to seat any new Illinois senator chosen by embattled Gov. Rod R. Blagojevich, but it is not clear the senators have the legal authority to reject a fully qualified appointee.In 1969, the Supreme Court ruled that the House of Representatives could not refuse to seat Rep. Adam Clayton Powell Jr., a New York Democrat who was accused of putting his wife on the payroll and misusing travel funds to vacation in the Caribbean. Despite those charges, he had been reelected by his constituents in Harlem.

'The Constitution does not vest in the Congress a discretionary power to deny membership by majority vote,' wrote Chief Justice Earl Warren. Congress may 'judge only the qualifications set forth in the Constitution,' he said.The qualifications are minimal. A senator must be at least 30 years old, a U.S. citizen and 'an inhabitant" of the state.'"

Fine--but let's take a closer look at Powell v. McCormack, 395 U.S. 486 (1969). Let's get this out of the way first: it was a seven to one decision not a seven to two decision. has a quote in their piece on the matter that is inaccurate on this point; I don't see what their source is for this. But here you see that only eight justices participated and only Justice Stewart dissented. (It would have been funny if alluding to his most famous remark, he had written "Like pornography, I can't describe tainted elections, but I know one when I see it!" (See Jacobellis v. Ohio, 378 U.S. 184, 197 [1964]).

That's trivial; more significant is something Warren wrote on page 522 of the Powell opinion:

"Our examination of the relevant historical materials leads us to the conclusion that petitioners are correct, and that the Constitution leaves the House without authority to exclude any person, duly elected by his constituents, who meets all the requirements for membership expressly prescribed in the Constitution."

The emphasis is, of course, mine. And look at how Justice Douglas began his concurrence, on page 553 of the opinion:

"The possible list (of cases where Congress might refuse to seat a member) is long. Some cases will have the racist overtones of the present one. Others may reflect religious or ideological clashes. At the root of all these cases, however, is the basic integrity of the electoral process. Today we proclaim the constitutional principle of 'one man, one vote.' When that principle is followed and the electors choose a person who is repulsive to the Establishment in Congress, by what constitutional authority can that group of electors be disenfranchised?"

Again, my emphasis. At this point I hope you can see where I'm going with this: the situation in Illinois where the Governor is appointing somebody to represent the state in the U.S. Senate is not the same as the situation with Congressman Powell. There is a big difference between Congress using its Article I, Section 5 power to declare a representative disqualified when he won an election, and using that same power to rule disqualified a man appointed by a governor who was recently arrested and may shortly be indicted.

In the hotair article I've linked above, Ed Morrissey writes:

"In this case, it’s even less likely that (Senate Majority Leader Harry) Reid could withstand a court challenge. No one has accused Burris of wrongdoing or unethical behavior."

Yes, but that's the point: it's not about whether Roland Burris is qualified to sit in the Senate, it's whether the man who put him there was qualified to do so. And while Reid still might lose such a challenge, based on what I've presented here, Reid can certainly say that the Powell case is not on point with what's happening in Illinois. There is a vast difference between arguing that one man is an incompetent fool and proving that thousands of voters are incompetent fools.

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