Is The Burris Appointment Tainted?

By Richard W. Crockett

A major complaint against Governor Rod Blagojevich’s appointment of Roland Burris to the United States Senate is that it is “tainted.” The question is, “How?” It certainly is not tainted as a legal matter, since in spite of everything, Blagojevich is still governor, and the appointment is within the legal powers of the governor. It may be that it is tainted as a political matter. Political “taint” is a matter of public perception, and it is more concerned with embarrassing circumstances in the appointment process and about future electability than about any legal aspect of Burris’ presently being seated. Political taint is something that we assign to the situation in our capacity as political observers; it is not an intrinsic characteristic of it. The claim that any appointment made by Blagojevich will be “tainted” rests on the widespread and perhaps true perception that the governor is corrupt, and not upon anything about the appointee. But this is a legal appointment, done no doubt under the scrutiny of the eavesdropping FBI. Up to this point in time, the United States attorney has not made any such claim of a defect in Burris’s background.

In the face of the legality of the Burris appointment, the supreme irony is that the Democrats in the United States Senate are depending upon a variety of subversions of the legal process toward his being seated on the grounds, of all things, that the person who appointed Burris may be subverting the law in other matters. The Democrats in the United States Senate have taken a position that anyone appointed by Blagojevich would not be seated. As a legal matter this position is not tenable. Governor Rod Blagojevich seems to have outsmarted his opponents by appointing former Comptroller and Attorney General of Illinois, Burris, probably with the purpose of cleaning up his own image by the association, and the Democrats in the Senate are now scrambling for position. They must know they will need every vote to get the economy out of the ditch and cannot afford to squander the opportunity to fill an empty seat with a respectable replacement, which is what they have in Burris. But they will have to backtrack to do it.

Democratic Senate Majority Leader Harry Reid on Meet The Press, Sunday, after protestations to the contrary, seemed to leave the door open to Burris being seated. At one point last week Reid praised Illinois Secretary of State, Jessie White, for pronouncing that he would not sign any documentation needed for Burris to be seated. But for White to refuse to sign off on the appointment of Burris as Senate appointee would be to claim appointive power for himself and encroach upon the power of the office of the governor, not merely the power of Rod Blagojevich. Clearly the power resides in the office of the governor, whereas the role of White in signing off on any certification required by the United States Senate is a purely ministerial act, and includes no discretionary authority. Even if Blagojevich is widely believed to be a corrupt scoundrel, he is as of the appointment still governor, un-impeached, un-convicted and acting within his legal authority. This action by White may not be nearly as purely supportive of the United States Senate leadership as it appears and may be a continuation of White’s alleged resentments toward Burris from the past. (I have worked for both of these men, and I rank Burris far higher regarding both scruples and competence.) It is true that the Senate Democratic Leadership has said that a Blagojevich appointee would not be seated. It is also true that the senate “cannot refuse to seat someone who meets the qualifications,” according to a United States Supreme Court decision involving Adam Clayton Powell.

If I may put it euphemistically, Blagojevich has been deep disappointment. While I personally favor having him impeached, we can be grateful that he did not “parachute” himself into the Senate seat. I am more interested in how Burris is going to vote in the United States Senate than in trying to tie him to a moral and legal crusade against the governor, however morally appealing and politically correct the crusade; it has little to do with Roland Burris.

I confess that I attended the Springfield victory celebration in 2002 of Blagojevich’s election as Governor of Illinois. I contributed to his political campaign. As supporting Democrats, those of us in attendance received a shiny key chain with the new governor’s name on it, and the Rudyard Kipling quoting Blagojevich turned out to be like the key chain. While it was shiny, it turned out to be plated with chromium, not silver. In Burris’s case, I’d bet on silver.

1/8/09