January 04, 2009
The following op-ed by HLS Professor Laurence H. Tribe ’66, “Blagojevich and the Constitution,” was published in the Jan. 2, 2009, issue of Forbes.
President-elect Barack Obama has urged the Senate to exclude from the seat he once occupied anyone appointed by embattled Illinois Gov. Rod Blagojevich.
But if, as some have argued, the Senate is constitutionally bound to seat any qualified person the Illinois governor appoints, then one of the newly elected president's first quasi-official public pronouncements will prove to have subordinated constitutionalism to politics, not an auspicious start for an administration determined to replace the rule of expediency with the rule of law.
Happily, the president-elect had his constitutional law right, and the critics who said the Senate would violate the Constitution if it carried out its threat to exclude any Blagojevich appointee had it wrong.
Those critics recalled the celebrated refusal of the House of Representatives to seat Adam Clayton Powell Jr. as a duly elected representative to Congress.
In its landmark 1969 ruling in Powell v. McCormack, the Supreme Court held that Article I, Section 5, which makes "[e]ach House...the Judge of the Elections...and Qualifications of its own Members," represents "a textually demonstrable commitment" to Congress of the power to judge, without interference by any court, whether a duly elected individual meets the age, citizenship and other objective qualifications for office set forth in Article I, Section 2, but not any power to deny membership through the discretionary addition of ideological or other "qualifications" to those carefully laid out in the Constitution itself.
By so holding, the Court preserved the ability of each house to decide whether a duly elected individual satisfies the Constitution's criteria for membership, while preventing any attempt by either the Senate or the House of Representatives to displace the judgment of any locality's electorate as to who would best represent its interests.
The defense that commentators have offered for the position taken by President-elect Obama and the Senate's Democratic leadership has largely missed the mark.
That Roland Burris, the man appointed by the Illinois governor in late December, was never "elected" is beside the point inasmuch as the 17th Amendment specifies that, whenever there is a vacancy in any state's Senate representation, the state's legislature "may empower [its] executive . . . to make temporary appointments until the people fill the [vacancy] by election as the legislature may direct."
That the sitting attorney general of Illinois views the governor as no longer fit to discharge the duties of his office--a position the Illinois Supreme Court refused even to entertain--has no bearing on the governor's authority under the federal Constitution, given the power placed in his hands by the state legislature.
And that the Illinois secretary of state refuses to sign the certificate of appointment is evidently immaterial under the governing provisions of Illinois law, which make the signature merely ceremonial.
But the arguments saying the Senate must seat Burris miss the mark as well. The fact that he is indisputably "qualified" in the constitutional sense has no bearing on the authority of the Senate under Article I, Section 5 to serve as the sole "Judge of the Elections"--and, by extension, the temporary appointments--of would-be members.
And the fact that the governor has yet to be convicted or even impeached is hardly conclusive when dealing with a Senate decision that a particular election or appointment process has been too tainted by evidence of corruption for any victor in that process to represent the electorate with honor and, equally vital, with the appearance of honor.
It matters not that the criminal standard of proof beyond a reasonable doubt has not yet been met and might never be: The question for the Senate isn't whether the Illinois governor truly is a crook, but whether reasonable observers would deem the process too crooked to produce a credible result.
The task of deciding whether public trust would be unacceptably compromised by seating any appointee of a governor whose overheard comments had poisoned the public well should not be confused with the task of deciding whether someone is guilty of election fraud or of corruptly conspiring to sell a public office for personal gain.
True, there has never been a case precisely like this one. It was confusion over the respective powers of state legislatures and governors in the immediate wake of the newly ratified 17th Amendment that led to the Senate's exclusion of two Alabama appointees, Henry Clayton and Franklin Glass, in the fall of 1913.
Frank Smith, initially voted a U.S. Senator in 1926 by the Illinois electorate and appointed to the Senate in 1927 by the Illinois governor, was twice excluded by the Senate on the basis that huge campaign contributions and corrupt practices involving Smith had clouded both his original election and his subsequent appointment.
And the white supremacist Theodore Bilbo, elected by the people of Mississippi for a third Senate term in 1946, was not seated by the Senate because a majority deemed his election tainted by his corrupt campaign practices and intimidation of black voters. Of course, nobody suspects corruption or racism on the part of this governor's shrewdly chosen appointee, a squeaky clean African-American politician.
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.
Laurence H. Tribe is a professor of constitutional law at Harvard. His latest book is The Invisible Constitution.