“I'm not passing myself off as a constitutional scholar.  I went to law school at a place called Pepperdine in Malibu, Calif., overlooking the Pacific Ocean--a lot of surfing and movie stars and all the rest. I barely knew where that law library was”

Rod Blagojevich

 

June 12, 2003, speaking to reporters about the debate over whether a draft of ethics legislation properly balanced the powers of various branches of government. He went on to admit to having gotten a C  in his  constitutional law class at Pepperdine, where he graduated in 1983.

 

From Eric Zorn, Quotations of Gov. Blagojevich, Chicago Tribune, Jan. 9, 2009 :http://blogs.chicagotribune.com/news_columnists_ezorn/2009/01/quotations-of-gov-blagojevich.html

Roland Burris, Illinois governor Rod Blagojevich's nominee for the senate seat once held by President-elect Barack Obama, was turned away from the Senate floor today, because he failed to present proper credentials to be sworn in as senator.  Rule 2 of the Standing Rules of the Senate requires that the certificate of election be signed by both the governor AND the secretary of state--who has refused to sign the document.  While the Constitution (Art. I, Sec. 5) gives each house the power to "judge of the elections, returns and qualifications," the U.S. Supreme Court in Powell v. McCormack found that the body could not add to the qualifications enumerated in the text of the constitution. It seems clear now that Senate Democrats are trying to avoid raising the "qualifications" issue and are instead looking at the"elections, returns" language. 

This may be mooted soon, as Burris is suing Illinois Secretary of State Jesse White to force White to provide the needed signature. (The Chicago Tribune has published the complaint for mandamus here.)

Interestingly, Minnesota Senate-hopeful Al Franken, who was declared the winner of the recent recount in his close-race against Norm Coleman, may be coming to Washington with no papers at all.  The Republican Governor Tim Pawlenty and Democratic Secretary of State Mark Ritchie appear to agree that state law requires that they withhold certification until all court challenges are over, although this election cycle has proved that anything is possible.

RIGHT: Button from Burris' unsuccessful 1984 run for the U.S. Senate.

UPDATE: Two noted constitutional scholars have weighed in with essays arguing that Burris must be seated; Erwin Chemerinsky in the LA Times and Bruce Fein in the Washington Times.  Both deal directly with the credentials argument, pointing out that some states don't require countersignatures yet the Senate Rule 2 hasn't been invoked in those cases.  Senate Leader Harry Reid seems to be softing his hard stance, suggesting that Burris would be seated if he prevails on his mandamus suit.

 

Just when it looked like that no more lawyers would join the Obama cabinet, The New York Times is reporting that Santa Clara University Law School graduate Leon Panetta will be the nominee as CIA director.  The former Clinton administration budget director and chief-of-staff is not known for his experience in the spy business, but this may have helped him because he is untainted by any association with intelligence failures and questionable policies on detainee interrogation faced by more experienced candidates.

The decision of New Mexico Gov. Bill Richardson to withdraw his nomination as commerce secretary has revived the possibility that Michigan Gov. Jennifer Granholm may be named to the post. A former US Attorney and state attorney general, Granholm is an 1987 graduate of the Harvard Law School.  The fact that the injection of TARP money into the U.S. auto industry has only punted the problem into the Obama administration's arms may make a Michigander a good fit for the head of the Commerce Department, since that agency will have to be a big part of any halfway permanent solution to Detroit's woes.

By the way, Panetta is not the first lawyer to head the CIA; four other attorneys preceded him--William E. Colby (Columbia Law School 1941), William J. Casey (St. John's 1937), William Webster (Washington University in St. Louis 1949), and R. James Woolsey, Jr. (Yale 1968). And the CIA's immediate predecessor, the Office of Strategic Services (OSS), was created during WWII by Wall Street lawyer William "Wild Bill" Dovovan.

UPDATE TO THE UPDATE:  Obama names Harvard Law School Dean Elena Kagan as the new Solicitor General. CNN has this announcement and that of some DOJ subcabinet picks here, including the naming of Dawn Johnsen as director of the DOJ's Office of Legal Counsel.  This is particularly interesting because Johnson recently penned a major critique of the Bush OLC for the UCLA Law Review.

Today's announcement that $13.4 billion of the $700 billion TARP money will be used to help automakers who have been unable to access credit since the financial industry seized up in September comes directly after President Bush floated the idea of an "orderly bankrupcty" for the industry.  This term does not appear in any of the bankruptcy law books in our library, but I surmise what he and other non-lawyer pundits and biz-show talkers are talking about is a pre-packaged bankruptcy under Chapter 11.  I was wondering what actual bankrupcty lawyers thought of this magical kind of bankrupcty where the feds cushioned the blow and lost no money.  Well, lucky for me, NPR's Planet Money was able (unlike other news sources) to track down one of these elusive bankrupcty attorneys, Steve Jakubowski, of the Coleman Law Firm and author of the Bankruptcy Litigation Blog (http://www.bankruptcylitigationblog.com), and ask him how a "orderly" GM/Chrysler bankruptcy would work. Surprisely, its not all chirping bluebirds and fluffy bunnies; the other creditors get a vote, the U.S. might not be able to cut the payback line and a huge DIP (debt-in-possession for the uninitiated) loan will need to be funded by "somebody" (any guesses who?).  It's good stuff--that is, if you like facts with your Morning Joe (or Squawbox or Situation Room).

President-elect Obama's announcement today of his nomination of Nobel-laureate physicist Stephen Chu as Secretary of Energy raised the question (at least in my trivia-seeking mind) if any other so-awarded persons had held a cabinet level position.  Although I know several cabinet members received laurels after office (usually winning the Peace Prize) and a number of winners of the economics prize have held sub-cabinet positions (the Council of Economic Advisers is lousy with 'em), Chu is unusual for joining the cabinet having already won the prize (1997) and for winning a hard science award.

Well, apparently I wasn't the only one with the question: ABC News' Senior White House Correspondent Jake Tapper had the same question and he did the research for his Political Punch blog.  Tapper has more details, but shows that Chu is indeed the first Nobel-winner to nominated to a cabinet .  However, he will be the second Nobelist to sit in a cabinet meeting, because Henry Kissinger won the peace prize (1973) while still serving as secretary of state.  Four other secretaries of state won post-cabinet peace prizes (Root, Kellogg, Hull and Marshall), as did two vice-presidents (Dawes & Gore).  Two sitting presidents won the prize (TR & Wilson).

NPR political correspondent Ken Rudin's latest post on his Political Junkie Blog is the kind of story I can't ignore: high politics combined with the less weighty business of collecting historical ephemera. 

It seems that Sen. Jim Bunning--our current senator but for nine years an ace pitcher for the Detroit Tigers--was scheduled to sell autographs at a Michigan baseball memorabilia sale this weekend.  However, after the auto bailout was scuttled, the promoter canceled it in anger at Bunning's active opposition. (Bunning was slated to get paid $35 an autograph--aren't we paying the poor guy enough at his day job?).  Bunning has been a staunch opponent of all the recent attempts to rescue both the banking and auto industries, so at least he isn't favoring bankers over line workers.

Apparently Bunning hasn't learned OJ's lesson--the business of sports collectibles is no place for the weak of heart.  These folks throw it high and hard!

 

Many of President-elect Barack Obama's major cabinet selection's have been made and it is remarkable how many lawyers have been elected to or nominated for the more prestigious executive positions. Joining lawyers President Obama (Harvard 1991) and Vice President Joe Biden (Syracuse 1968) are nominees as Secretary of State, Hillary Clinton (Yale 1973), Attorney General, Eric Holder (Columbia 1976), and Secretary of Homeland Security, Janet Napolitano (Virginia 1979).

While the office of attorney-general is obviously a lawyer's job, a surprising number of secretaries of state have been attorneys, including some of the best including John Jay, John Quincy Adams, James Monroe Henry Clay, Elihu Root, Cordell Hull, Dean Acheson and James A. Baker III (to name just a few). The new position as Secretary for Homeland Security is settling in as a job for lawyers, with the first two chiefs,Tom Ridge (Penn. 1972) and Michael Chertoff (Harvard 1975) having been prosecutors.

I was curious to see when the last time these same top four jobs (Prez, Veep, SecState & AG) were all held by lawyers. It turns out it was Richard Nixon's (Duke 1937) first term, before VP Spiro Agnew (Baltimore 1947) resigned, William P. Rogers (Cornell 1937) was pushed out by Henry Kissinger, and John Mitchell (Fordham 1938) left in the midst of Watergate.

Not a great example but Washington's first cabinet (with the exception of War Secretary Henry Knox) had all been called to the bar and while the Great Man had merely dabbled, Vice President John Adams, Secretary of State John Jay, Treasury Secretary Alexander Hamilton and Attorney General Edmund Randolph had all been working lawyers.

 

Bibliography:

America's Lawyer-Presidents: From Law Office to Oval Office. Evanston, Ill: North Western University Press, 2004. (Order from ABA)

Herring, George C. From Colony to Superpower: U.S. Foreign Relations Since 1776. Oxford: Oxford University Press, 2008.

 

While it is looking less likely that convicted-but-not-sentenced Alaska Senator Ted Stevens will win his re-election race, if the tube-surfing Internet guru does prevail, the new Congress will be faced with the dilemma of an actual (as opposed to potential) felon in their midst.

Public statements make it clear that both Republicans and Democrats want Sen. Stevens to climb on his dump truck and go back to Alaska. All of the stories I've read take for it for granted that the next step will be for the Senate to exercise its power to expel a member after Stevens is sworn in. However, there is another option of which there has been little talk: the use of the Senate's constitutional right to judge the qualifications of its members to deny Stevens right to be sworn in the first place. This option requires only a majority vote (as opposed to a two-thirds majority) and has the added benefit of preventing a convicted felon from ever being part of the new Congress.

There is not a clear precedent for this--but swearing in a convicted-felon as senator is also unprecedented. From looking at the records of Senate election and qualifications cases (which are at least initiallly adjudged by the Senate itself without judicial intervention, U.S. Const. I,.5, though the Supreme Court does have the final say), I see two issues that could be raised by this dramatic step. The first issue would be the historical reluctance by both bodies of Congress to even entertain refusing the oath to any candidate carrying election papers certified by the designated state officers. Second, cases from the Civil War era indicate a general, though not clearly stated, belief that that an inquiry into a candidate's fitness for office improperly adds qualifications not enumerated in the constitution. In both cases, I think there is an argument that the existing Senate precedents are not an absolute bar to refusing Stevens the oath.

The initial issue would be over whether the Senate would vote to refuse Stevens to take his oath of office upon presentation of a certification of election by the Alaska authorities. I think that issue was disposed in the 1975 case of Durkin v. Wyman in New Hampshire, described in Anne M. Butler, Wendy Wolff, and Sheila P. Burke, United States Senate Election, Expulsion, and Censure Cases, 1793-1990 421-425 (Washington, D.C.: G.P.O., 1995). The case involved a ten-vote margin, a withdrawn certification of election, and a confused history touching all levels of the New Hampshire courts who ultimately certified the Republican Wyman’s election. The despite the admission by both parties that there was no allegation of fraud and that the papers were properly attested, the Democratically controlled Senate rejected the claim that it was bound by the state certification and tasked the Rules Committee with recounting disputed votes. (With the Senate hopelessly deadlocked in late summer, the two parties agreed support a declaration that the seat was vacant so that a special election could be held; Durkin won that ballot easily).

The knottier issue involves the question if whether rejecting a properly elected candidate because he has been convicted of a felony impermissibly adds a qualification for office not enumerated by the Constitution. The most on point case is the 1862 case of Benjamin Stark of Oregon, accused of treasonous intercourse with the Confederacy, the full papers of which are reprinted in Taft’s Election Cases, reprinted in full in Google Books. When Stark appeared to present his credentials and swear the oath, Sen. William P. Fessenden of Maine moved successfully that Stark be denied the oath and the matter be referred to the Judiciary Committee. The Committee returned with a one-paragraph majority report recommending that Stark be allowed to take the oath. Though the majority did not state its reasons for its decision, the minority report by Sen. Lyman Trumbull indicated that the decision turned (partially) on the theory that any past treasonous acts by Stark would be cured by his swearing to uphold the U.S. constitution. (A later effort to oust Stark failed and revealed the flimsy evidence for treason in the case).

However, the most interesting thing about the Trumbull minority report is a rhetorical passage where he ridicules the idea that barring the oath to a traitor is a superaddition to the constitution by comparing it with the (then) comically absurd idea of swearing in a felon. “Suppose,” Trumbull asks, “a Senator, after his appointment, and before qualifying, to commit the crime of murder, would any one question the right of the State authorities where the crime was committed to arrest, confine, and, if found guilty, execute the murderer, and thereby forever prevent his taking his seat? Or, if the punishment for the offense was imprisonment, would any one question the right to hold the Senator in prison, and thereby prevent his appearing in the Senate?” (p. 222). Noting the unlikeliness of such a result, he concludes that “it is clear that a Senator-elect, possessing all the constitutional qualifications of age, citizenship, and inhabitancy, may be prevented from taking the oath of office” in such a case, noting that Congress had “repeatedly acted upon the presumption that it was entirely competent for it to prescribe, as a punishment for crime, an inability forever afterwards to hold any office of honor, profit, or trust under the United States.” It appears that the majority didn’t dispute Trumbull’s claim that a convicted felon should be denied the right to take the oath; they just didn’t think there was sufficient proof of treason, or that the oath of loyalty would satisfy that concern.

The precedents, while not completely clear, suggest that the Senate could refuse to allow Stevens to join the 111st Congress. That is, if the Alaska voters haven’t already done so.

Obama transition team chief John Podesta recently indicated that Obama's advisers were reviewing Bush executive orders and that the new president was considering reversing some Bush orders. Podesta noted that "there's a lot that the president can do using his executive authority without waiting for congressional action." The statements sparked a discussion about executive orders and generally about Obama's views on presidential power.

Executive Orders

Executive orders are are not an extra-ordinary use of presidential power; since the administration of Teddy Roosevelt each chief executive has issued hundreds of these orders, with FDR issuing thousands in response to the Great Depression. In theory as well as ordinary practice, they are not a legislative power; they only direct the existing executive departments and agencies to exercise their powers in conformance with the executive order, within the confines of existing legislation and established presidential power. This is not to say that they can do things Congress might not agree with; in 1948 President Truman signed Executive Order 9981 integrating the US armed forces when there was no way that a similiar law would have made it out of the Senate. Nonetheless, it was a fully constitutional exercise of his power as commander-in-chief.

Executive orders are not secret; they are published in the Federal Register when issued and active EOs are collected annually in volume 3 of the Code of Federal Regulations. Even more convenient for Podesta and company, the National Archives has collected and created a directory page and subject index for all of President Bush's EOs at http://www.archives.gov/federal-register/executive-orders/wbush.html. From the Afghanistan campaign medal to the blocking of Zimbabwe assets in the US, all 262 Bush executive orders can be reviewed.

Executive Power

The Podesta announcement also raised speculation on Obama's view of the scope of executive power. With some accounting for the fact that presidential powers look bigger from the Oval Office than suite 714 of the Hart Office Building, there is a very good summary of Obama's view in a questionaire that Boston Globe reporter Charlie Savage sent all the candidates last December. The Q/A relates each candidates views on the constitution and the president's constitutional powers. What is interesting is that despite being involved in a primary campaign involving Democratic party activists who depised President Bush's questional assertion of vast wartime powers, Obama's answers are relatively moderate in both tone and substance. For example, he refuses to totally swear off the use of presidential signing statements; he (rightly) condemns the use of such statements to negate the law being signed, but allows for the traditional use of the statements to "clarify his understanding of ambiguous provisions of statutes and to explain his view of how he intends to faithfully execute the law," and--this is the type of ambiguity that is worrisome to some--"to protect a president's constitutional prerogatives." Nonetheless, Obama rejects most of Bush's more eyebrow-raising assertions of presidential power and he foreshadows the recent announcement that his administration would close the extralegal prison at Guantánamo Bay.

 

 

 

Even before Barack Obama was elected president Tuesday, Washington pundits were surveying insiders for clues on the possible personel chart of his new administration. As far back as May, the Washingtonian had floated names for the future cabinet and WH staff, and more concrete suggestions were made last week in a Politico article. Lawyers haven't been left out of the game, with this months issue of the ABA Journal discussing the prospects for legal jobs in either an Obama or McCain cabinet. As the ABA journal points out, Obama, a lawyer (and the second Harvard JD as president)*, has surrounded himself with legal talent and his transition team reflects it.

So what are the top legal jobs open? Well only the positions of Attorney General (& deputies) and Solicitator General, WH counsel, dozens of department & agency general counsels, several unfilled federal judgeships and all the US Attorneys. Add in jobs not specifically legal but often held by lawyers like the Secretary of Homeland Security and the heads of the SEC, FCC, FEC, FTC, PTO, as well as jobs not vacant but might soon be (like some seats on the Supreme Court) and you have a lot to discuss.

I'm going avoid major speculation (I'm appending a list of links of the major recent articles), but will note that six names have been floated enough for so many options, that I can't help thinking that it is likely that most will take some role in the Obama administration (or be appointed to a federal court):

• Eric Holder. Obama VP vetter & Deputy AG under Clinton. (wiki bio)
• Elena Kagan. Dean of Harvard Law School. (Harvard bio w/ cv; wiki bio)
• Judge Sonia Sotomayor of New York. U.S. Circuit Court of Appeals, Second Circuit. (wiki bio; court bio)
• Michigan Gov. Jennifer Granholm. Former US Attorney & state attorney general. (gub bio; wiki bio)
• Arizona Gov. Janet Napolitano. Former US Attorney & State AG. (gub bio; wiki bio)
• Massachusetts Gov. Deval Patrick. Clinton DOJ; general counsel for Texaco and Coca-Cola. (gub bio; wiki bio)

Holder has been a top Obama advisor throughout the campaign and seems a lock for AG. Napolitano, who could continue the hardnosed theme set by the selection of Raum Emanuel as chief of staff, has been touted for AG and Homeland Security (or maybe the Supreme Court--where the former attorney for Anita Hill could resume her aquaintance with Clarence Thomas). Kagan and Sotomayor have been touted for the Supreme Court with insiders expecting perhaps two liberal justices to retire in the window of time when a Democratic president can replace and the Senate confirm likeminded replacements. Patrick is an Obama soulmate and could see a top job, maybe WH counsel or AG, although the cronyism of the Bush administration (the ghost of Gonzalez hangs thick) may work against him.

But I can't have all the fun, let these guys speak:

• Mike Allen, Dems sketch Obama staff, Cabinet, Politico (November 3, 2008)
• Garrett M. Graff, Who Might Be on an Obama Cabinet? Washingtonian (May 2008)
• Martha Neil, Better Question: Who Isn’t a Lawyer on Obama’s Transition Team? ABA Journal Weekly (online)
• Terry Carter and Stephanie Francis Ward, The Lawyers Who May Run America ABA Journal (November 2008)
• Andrew Cohen, Obama, The Supreme Court And DOJ, CBS News (Nov. 5, 2008)
• Rachel Breitman, First Female Solicitor General? Could Happen In Obama's Administration AmLaw Daily (November 6, 2008)
• Marisa McQuilken and Brian Katkin, An Early Line on Legal Slots in Obama Administration, Legal Times (November 6, 2008)
• Profiles on Napolitano, Patrick & Holder see Huffington Post
  
• Howard Fischer, Will Napolitano go to Washington? Yuma Sun (November 5, 2008)
• Kelly House, Granholm listed as high court option: Expert predicts Mich. governor could be Supreme Court pick, The (Michigan) State News (October 13, 2008)
• Obama court pick could be Granholm, Washington Post (October 7, 2008)

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* Can you guess the first holder of a Harvard J.D. to be president. Hint: He did not have as decisive a victory as BHO; indeed it more resembled that of Obama's immediate predecessor...