Burris to Sue Senate for Seat
Mark Impomeni
Contributor
Posted:
01/6/09
Timothy Wright, a lawyer for disputed Illinois Senate appointee Roland Burris (D), has written a letter to Senate Majority Leader Harry Reid (D-NV), Illinois Senator Dick Durbin (D-IL), and Sen. Diane Feinstein (D-CA), pleading his client's case to be seated when the Senate opens the first session of the 111th Congress today. In the letter, Wright strongly hints at the possibility of a lawsuit if Senate Democrats follow through on their plans to refuse Burris his seat on the grounds that his appointment by scandal-plagued Illinois Governor Rod Blagojevich (D) is illegitimate.
Wright rests his case on Marbury v. Madison, the famous "judicial review" case decided by the Supreme Court in the early days of the nation's history, and the Seventeenth Amendment to the Constitution, which grants governors the power to fill Senate vacancies subject to the legislature. In Madison, the Court held that an appointment takes place once the last act by the person empowered to make the appointment is completed. Wright concludes from this that Burris' appointment became official once Blagojevich signed the necessary documents. By this reasoning, Illinois Secretary of State Jesse White's refusal to countersign the certificate of appointment is immaterial, since White has no power to appoint. This flies in the face if the Senate's Rule 2 which says that a Senator may only be seated if he possesses a certificate signed by both the governor and secretary of state. Wright's employment of this argument is an indication to Senate Democrats that Burris intends to sue on Constitutional grounds if he is denied his seat.
Wright told the Chicago Tribune that Burris will appear at the Capitol to be sworn in but will not create a confrontation. He will, however, file suit in federal court in Washington once it becomes clear that Senate Democrats intend to prevent him from taking his seat. All that remains to be seen in this political drama is whether or not C-SPAN cameras will capture Burris standing at the Senate door with Reid and the Senate Sergeant-at-Arms blocking his way.
Wright rests his case on Marbury v. Madison, the famous "judicial review" case decided by the Supreme Court in the early days of the nation's history, and the Seventeenth Amendment to the Constitution, which grants governors the power to fill Senate vacancies subject to the legislature. In Madison, the Court held that an appointment takes place once the last act by the person empowered to make the appointment is completed. Wright concludes from this that Burris' appointment became official once Blagojevich signed the necessary documents. By this reasoning, Illinois Secretary of State Jesse White's refusal to countersign the certificate of appointment is immaterial, since White has no power to appoint. This flies in the face if the Senate's Rule 2 which says that a Senator may only be seated if he possesses a certificate signed by both the governor and secretary of state. Wright's employment of this argument is an indication to Senate Democrats that Burris intends to sue on Constitutional grounds if he is denied his seat.
Wright told the Chicago Tribune that Burris will appear at the Capitol to be sworn in but will not create a confrontation. He will, however, file suit in federal court in Washington once it becomes clear that Senate Democrats intend to prevent him from taking his seat. All that remains to be seen in this political drama is whether or not C-SPAN cameras will capture Burris standing at the Senate door with Reid and the Senate Sergeant-at-Arms blocking his way.