Kurt X. Metzmeier's blog


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).

Senator Bunning Is Free for Booking this Sunday


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!


Lawyers in Obama's Cabinet


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.



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.


Ousting Stevens: Senator Down the Tubes?


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.