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Tribe on Burris and the Temporal Factor

By Jack M. Balkin

Over at Forbes, Larry Tribe argues that Powell v. McCormack is distinguishable and that the Senate may refuse to seat Roland Burris. His argument is similar to that offered by Akhil Amar, Josh Chafetz, Mark Tushnet, and myself. He concludes with the following:

But that the Senate's early December decision to exclude any Blagojevich appointee reflected nothing about the particular person he appointed cuts for, not against, leaving the matter to the judicially unreviewable judgment of the Senate itself.

For the danger of invoking doubts about the process of election or appointment, as a pretext for excluding someone that a Senate majority finds objectionable, is minimized when the decision to exclude is made in advance of any individual's appointment, and thus under the classical philosopher's veil of ignorance about whose ox might be gored.

Needless to say, whether the Senate has the authority to refuse to seat Burris is only the beginning of the matter, not the end of it. It merely sets up the background political entitlement in what is likely to be a complicated process of bargaining and playing for time. And even if the Senate lacks the authority to refuse to seat Burris, the debate over whether it does (and the need for Burris to bring litigation to establish his right) also gives the Senate and the Illinois legislature room for maneuver.

The Senate may ultimately seat Burris, but for the moment, it probably wants to delay decision by referring the matter to a committee to consider whether or not there was anything problematic in the circumstances of the appointment (Many commentators doubt that there is anything problematic with the appointment, but it's worth recalling that only a few weeks back the Governor was caught on tape boasting he would sell the seat and certainly wouldn't let it go without getting something valuable for it. Even if there is no present evidence of misconduct in this appointment, the Senate might insist that it deserves a little time to look a little closer into the circumstances).

While that investigation is ongoing, Illinois may impeach Blagojevich and a new governor may make another appointment, which the Senate will probably readily accept. Or Blagojevich may strike a deal that procures his speedy exit. Conversely, if the Senate delays too long, or allows the controversy to fester, it may look bad and/or impede the Democrats' legislative agenda. That is especially the case if the Democrats decide at some point that they want to seat Al Franken.

We do not know the ultimate course of events. The point here, rather, is that the constitutional question-- whether the Senate must seat Burris-- must be understood against these temporal and political factors.

Full post as published by Balkinization on January 03, 2009 (boomark / email).