Kurt X. Metzmeier's blog

Repository of American Legal Ephemera, vol. 1., no.1.


This is the first issue of an occasional feature I call the Repository of American Legal Ephemera, where I’ll pull an item from my motley of legally oriented artifacts, mostly printed but once and a while something more three-dimensional, and show it along with a few sentences (or more) about its context.  Readers of this blog will not be surprised; I’ve already featured a 1960s era flyer from a Jefferson County (Ky.) judicial race, a poster of an Eastern Kentucky magistrate candidate with a penchant for poodles, and an Illinois political button rendered ironic by time.

Maurice Rickard, author of several works on the phenomenon, defined ephemera as the "minor transient documents of everyday life."  Tickets, flyers, broadsides, advertisements, identification cards, these are the butterflies for the ephemera-collector's net.  Librarians and curators tend to limit the category to nonbook print materials, using the term realia for artifacts, but I like Rickard's definition because it reflects the most interesting quality of most ephemera--their immediacy and single-mindedness.  A ticket is to keep out gate-crashers, an advertisement to promote Saturday's sale.  When the ball game is over and the furniture is sold, the ticket is dropped on the floor and the ad is thrown away.  Except one or two survive and (unwittingly to the item's makers) these fragile bits of paper become windows into that moment in time.

This week’s entry is a button from Judge Janice Martin’s first campaign.  Janice Martin was appointed to the Jefferson District Court Bench in March 1992 by Governor Brereton C. Jones, becoming the first African- American woman to join the Kentucky judiciary.  She was later elected to the bench in November 1992 in a campaign in which the following button was distributed to supporters. (As I recall, I picked it up one evening when I joined several fellow law students to staple together a huge batch of yard signs  in Judge Martin’s basement).  Martin received her B.A. in 1977 and her J.D. in 1980 from the University of Louisville. Sadly she, along with colleague Toni Stringer, retired to the senior status program in early 2009, leaving Jefferson County (which is 19% black) without an African American on its judicial bench. (This could be remedied by Governor Beshear who must name her replacement).

Judd Gregg, a L.L.M. in Tax, Named to Obama Cabinet; Hope His Taxes Are in Order


The watch for lawyers in the Obama administration appears to never end.  Just when I'm ready to post that Sen. Judd Gregg (R-N.H.),who received his J.D. in 1972 and a L.L.M. in tax law in 1975 from Boston University Law School, has accepted an nomination as Secretary of Commerce, former Sen. Tom Daschle drops out as head of HHS--leaving an opening for yet another legally trained cabinet member.

Among the possible replacement candidates is Obama transition team co-chair and former Clinton chief-of-staff John Podesta, a 1976 graduate of the Georgetown University Law Center.  As is pointed out in a Bloomberg News article analyzing Obama's options, while there are many candidates capable of running HHS, Podesta may to the only one with the political skills and personal connections to replace Daschle as the point-man to get a major health-care reform through Congress and onto the president's desk.

Inauguration Day


As you watch the events leading up to the historic swearing of Barack Obama as president, I’d suggest pointing your web browser to the Library of Congress American Memory digital exhibit, “I Do Solemnly Swear”: Presidential Inaugurations.  In addition to the text of all the inaugural addresses (provided by Avalon Project at the Yale Law School), there are "diaries and letters of presidents and of those who witnessed inaugurations, handwritten drafts of inaugural addresses, broadsides, inaugural tickets and programs, prints, photographs, and sheet music."



The bible that Lincoln used at his first inaugural; will be used to swear in President Obama. Library of Congress


Pearls Before Swine

The Burris Dossier


Chicago Public radio station WBEZ has posted Illinois Senate appointee Roland Burris's letter of appointment from Gov. Rod Blagojevich and the letter confirming the appointment's authenticity from Secretary of State Dexter White.   This follows the Illinois Supreme Court's ruling that despite the governor's legal troubles--federal indictment, impeachment, etc.--the appointment was valid.  Recent reports suggest that this should satisfy the Senate although new legal developments could slow seemingly inevitable Burris' effort to be promptly seated.

This being the blog of a law librarian, not "an old trial lawyer," here are links to all the legal documents cited so far in this curious case:

1.  The Seventeenth Amendment (Amendment XVII) to the United States Constitution.
“When vacancies happen in the representation of any State in the Senate, the executive authority of each State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.”

2.  Standing Rules of the Senate, Rule II: Presentation of Credentials and Questions of Privilege
“II. 2. The Secretary shall keep a record of the certificates of election and certificates of appointment of Senators by entering in a wellbound book kept for that purpose the date of the election or appointment, the name of the person elected or appointed, the date of the certificate, the name of the governor and the secretary of state signing and countersigning the same, and the State from which such Senator is elected or appointed.”

3.  Illinois Code.  United States Senators. 10 ILCS 5/25-8.
“When a vacancy shall occur in the office of United States Senator from this state, the Governor shall make temporary appointment to fill such vacancy until the next election of representatives in Congress, at which time such vacancy shall be filled by election, and the senator so elected shall take office as soon thereafter as he shall receive his certificate of election.”

4. Ill. Const. 1970, art. V, §16.
The Secretary of State shall maintain the official records of the acts of the General Assembly and such official records of the Executive Branch as provided by law. Such official records shall be available for inspection by the public. He shall keep the Great Seal of the State of Illinois and perform other duties that may be prescribed by law.”

5. Illinois Code.  Secretary of State Act. 15 ILCS 305/5
“[i]t shall be the duty of the Secretary of State:
1. To countersign and affix the seal of state to all commissions required by law to be issued by the Governor.
2. To make a register of all appointments by the Governor, specifying the person appointed, the office conferred, the date of the appointment, the date when bond or oath is taken and the date filed. If [State] Senate confirmation is required, the date of the confirmation shall be included in the register.”

6.  Burris v. White, Supreme Court of Illinois, No. 107816 (01/09/2009)
“Because the Secretary of State had no duty under section 5(1) of the Secretary of State Act (15 ILCS 305/5(1) (West 2006)) to sign and affix the state seal to the document issued by the Governor appointing Roland Burris to the United States Senate, Petitioners are not entitled to an order from this court requiring the Secretary to perform those Acts. Under the Secretary of State Act, the Secretary’s sole responsibility was to register the appointment (15 ILCS 305/5(2) (West 2006)), which he did. No further action is required by the Secretary of State or any other official to make the Governor’s appointment of Roland Burris to the United States Senate valid under Illinois law.”


Law Library-related Quote of the Day


“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

Mr. Burris Goes to Washington


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.


Obama's Lawyered-Up Cabinet: An Update


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.

What's an Orderly Bankruptcy? I Can't Find It in Black's Law Dictionary ...

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).

He Blinded Me With Science!


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).