Cairo Association of Teachers - Newsletter

CAT Tracks for January 7, 2009 SAVING FACE

THAT is the issue that emerged yesterday...THE issue that is now the focus of the U.S. Senate's ill-advised decision not to seat Roland Burris, creating instead a media spectacle that will over-shadow the sleazy and crazy antics of ours truly, Rod Blagojevich. [That cackling sound you hear in the background is Foxy Rod - to use his terms - laughing his (expletive) ass off!]

This was such an over-the-top joke that professional comedian Al Franken stayed home, refusing to play second banana to Harry Reid.

Two (punch) lines from the article below say it all...

• Senior Democratic officials said there was a growing sense among Senate Democrats and advisers to Mr. Obama that Mr. Burris should ultimately be seated, as long as it could be done in a face-saving way for Democrats who had initially said they would block the appointment, made by Rod R. Blagojevich, the embattled governor of Illinois.

• “If Mr. Burris takes possession of valid credentials,” Mr. Reid said, “the United States Senate will proceed in a manner that is respectful to Mr. Burris while ensuring that there is no cloud of doubt over the appointment to fill this seat.”

Senators, With 2 Exceptions, Sworn In for New Term

By CARL HULSE

WASHINGTON — Inside the Capitol, the air was festive Tuesday as senators with families in tow celebrated the opening of the 111th Congress.

Outside the Capitol, the air was cold and wet as the one would-be lawmaker denied access to the Senate floor made his case as the rain came down in a muddy park.

“Members of the media, my name is Roland Burris, the junior senator from the state of Illinois,” said a man who really needed no introduction, given the tumult that surrounds him.

On the day new members of Congress were sworn in, it was Mr. Burris who commanded the most attention after he was barred from taking the oath of office. As Mr. Burris described it in his brief remarks, Senate officials had “advised that my credentials were not in order and I would not be accepted and I would not be seated and I would not be permitted on the floor.”

The stalemate over Mr. Burris marred what otherwise should have been a day of revelry for Democrats, who seated their expanded majorities in both the House and Senate in preparation for the inauguration of President-elect Barack Obama on Jan. 20.

In the House, more than 50 new members were among those sworn in as Representative Nancy Pelosi of California was re-elected speaker before the House plunged into an opening-day partisan dispute over rules changes. The Democratic changes were adopted.

But the Senate was shorthanded on its opening day because of the fight over the vacancy caused by the resignation of Mr. Obama to assume the presidency as well as the contested outcome in Minnesota, where the former comedian Al Franken came out on top of the incumbent Republican, Norm Coleman, in a recount that appears headed to court.

Senior Democratic officials said there was a growing sense among Senate Democrats and advisers to Mr. Obama that Mr. Burris should ultimately be seated, as long as it could be done in a face-saving way for Democrats who had initially said they would block the appointment, made by Rod R. Blagojevich, the embattled governor of Illinois.

One Democratic senator, Dianne Feinstein of California, the outgoing chairwoman of the Senate Rules Committee, said publicly that Mr. Burris should be seated, and others said they could see Mr. Burris eventually winning entry if events unfolded in his favor.

“He is not some kid who has no background,” Ms. Feinstein said of Mr. Burris.

Mr. Franken did not appear in Washington, pending a resolution of the Minnesota race. Mr. Burris, 71, chose to make a personal plea for his credentials to be accepted, even though they had been rejected when initially presented to the secretary of the Senate on Monday. Though Mr. Burris had said he was not seeking any type of confrontation, a spectacle unfolded nonetheless.

As Mr. Burris and his entourage arrived on Constitution Avenue alongside the Capitol, he was rushed by reporters and photographers, who slowed his movement enough that one aide remarked that it was the news media, not the Senate, that was blocking Mr. Burris’s entry into the Senate.

“Congratulations, senator,” one man protesting outside the Capitol shouted as the mass consisting of the Burris retinue and journalists moved by.

Mr. Burris made his way to the secretary of the Senate’s office for what Senate officials described as a “brief and amicable” meeting about why Mr. Burris’s certificate of appointment did not comply with Senate rules.

During that session, where Mr. Burris was backed by a team of lawyers and Senate officials by a team of parliamentarians, participants said that Mr. Burris asked to be sworn in. But he was told by the Senate officials that his credential was invalid since it lacked the state seal as well as the signature of the Illinois secretary of state, who has refused to sign. After the meeting, Mr. Burris trudged in the rain to a nearby Senate park for a news conference, since he lacked standing to officially address journalists in the Capitol. He and his lawyers said they would pursue legal options but still hoped to get Senate leaders to drop their opposition.

Senator Harry Reid of Nevada, the majority leader, is scheduled to meet Wednesday morning with Mr. Burris. He said Tuesday that the Senate was monitoring developments in Illinois that could have a bearing on the appointment — namely an effort by Mr. Burris to win a court order to force the secretary of state to sign the credentials and a coming legislative hearing on the possible impeachment of Mr. Blagojevich.

“If Mr. Burris takes possession of valid credentials,” Mr. Reid said, “the United States Senate will proceed in a manner that is respectful to Mr. Burris while ensuring that there is no cloud of doubt over the appointment to fill this seat.”

In an affidavit prepared for the hearing and made public, Mr. Burris swore that he was first contacted by the governor’s office about the appointment on Dec. 26, well after the investigation into the governor became public. He said he was personally offered the appointment by Mr. Blagojevich two days later. Mr. Burris said that no other topics were discussed other than Mr. Burris’s own public service record.

Senior Democratic officials said if Mr. Burris won the secretary of state’s signature and made a persuasive case before the state impeachment committee that nothing untoward happened, his appointment might move forward. Democrats would also prefer that Mr. Burris offers himself more as a caretaker who would only serve out the remaining two years of Mr. Obama’s term and not seek to run in 2010.

Representative Danny Davis, an Illinois Democrat who turned down a chance at the appointment, warned that the refusal by Senate Democratic leaders to seat Mr. Burris could split the Democratic Party and alienate blacks.

He said his own constituents overwhelmingly favored allowing Mr. Burris into the Senate. But he also said that supporters of Mr. Burris did not have to make a case based on racial justice, but simply on basic law. Mr. Blagojevich has not been formally charged or indicted, let alone convicted of any crime, Mr. Davis noted, meaning he is still empowered to appoint a replacement to Mr. Obama’s seat.

“In America we take the position, supposedly, that you are innocent until proven guilty,” Mr. Davis said. “I think black people in American simply wanted to be regarded as having equal opportunity, and equal opportunity under the law.”

An Op-Ed Piece From the New York Times...

City of Cold Shoulders

By WALTER DELLINGER
Washington

The scene of Roland W. Burris being escorted from the Senate by the Capitol police on Tuesday could be only the first act of an unpleasant and distracting drama. But in the days since Mr. Burris’s appointment to Illinois’s junior Senate seat was announced by that state’s scandal-tainted governor, Rod Blagojevich, it has become clear that the Senate’s power to reject Mr. Burris is, at best, highly debatable. The wisest course for the Senate is to end the dispute by accepting the appointment.

A similar situation arose in 1967, when the House of Representatives refused to seat Adam Clayton Powell Jr., the outspoken congressman from Harlem accused of personal misconduct involving public funds. I was clerking for Justice Hugo Black two years later when he joined in the Supreme Court decision that the House lacked the power to deal with Powell’s conduct by refusing to seat him.

In Justice Black’s view, one of the worst abuses of power in England resulted from parliamentary majorities wrongly refusing to seat dissident legislators. That experience makes me very wary about the Senate’s barring a person from taking a seat unless its authority to do so is clear. Here it is not.

The Constitution’s text is simple enough: “Each house shall be the judge of the elections, returns and qualifications of its own members.” Since no one disputes that Mr. Burris, a former Illinois attorney general, possesses the constitutional qualifications of age, residency and citizenship, the remaining issue is whether the Senate can adjudge Mr. Burris not to have been properly appointed. Although federal prosecutors are seeking a corruption indictment of Mr. Blagojevich, he is in fact still the governor. The charges that he sought bribes to appoint certain candidates to the Senate do not automatically render illegal other official acts of his office like signing laws or pardoning criminals. And because there is no evidence that a bribe was solicited from, or proffered by, Mr. Burris, his appointment is presumptively lawful.

Nor do the other arguments against Mr. Burris’s appointment hold up. The contention by the Democratic leadership that Mr. Burris can be denied a seat because the Illinois secretary of state refuses to sign his appointment papers is without merit — it would confer upon secretaries of state absolute veto power over governors’ appointments.

Postponing the decision until Mr. Blagojevich’s removal and replacement by the lieutenant governor is not a clean solution either. Mr. Burris will argue that if his appointment was valid, Illinois law entitles him to the seat until the 2010 election. In his view, there would be no vacancy for the new governor to fill. Having two rivals, one appointed by each governor, disputing who is the rightful senator might be the worst possible outcome.

In the end, the difficult question is whether the Senate can exclude a qualified person who did nothing wrong to obtain his appointment, and whose selection is itself without taint, because the overall appointment process was alleged to have been tarred by corruption. This is not an easy question. I can understand how senators might conclude that the result of such a distorted process is legally invalid. But on balance the right answer is to seat the appointee.

The case for rejecting Mr. Burris is made especially troubling by the cavalier way in which some have suggested that the Senate can reject an appointee for any reason it chooses. That is wrong. The Senate’s power to decide is only the power to decide correctly under the law, not the power to decide however the majority of the Senate prefers to decide.

The Supreme Court decision in the Powell case did leave open the possibility that a Congressional decision finding that a member was not properly elected — in this case, appointed — might be a “political question” immune from judicial review.

But that some reasons for denying Mr. Burris this seat might not be subject to review by the courts means that the Senate should take more care, not less. As we emerge from eight years of extravagant executive claims of unreviewable authority, Congress should be especially scrupulous about having a solid legal basis for controversial actions.

Whether or not it was wise for the governor to make an appointment, no one doubts that it would be lawful for the Senate to accept Mr. Burris. It is only a decision to exclude Mr. Burris that would lead to a continuing dispute about whether the Senate had the authority to reject the choice of a sitting governor.

The Senate can avoid this constitutional quagmire entirely by agreeing to seat Mr. Burris, a respected public servant no one has accused of any wrongdoing.

Walter Dellinger, a lawyer, was the head of the Justice Department’s Office of Legal Counsel from 1993 to 1996.