Hamilton, Madison, and Jay

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Friday, January 2, 2009

The Burris Saga Continues

As we know, Governor Rod Blagojevic named Roland Burris to succeed Barack Obama in the Senate. It is being reported by CNN today that he will be physically blocked from entering the Senate should he arrive next Tuesday to be seated:

Senate Democratic leaders think Roland Burris, Illinois Governor Rod Blagojevich's pick to fill President-elect Barack Obama's vacant Senate seat, will likely show up on Capitol Hill Tuesday for the opening day of Congress, according to a Democratic aide familiar with Senate Democratic leaders' plans.

They have prepared a contingency plan in case he does, the aide added.
Burris will not be allowed on the Senate floor, according to this aide and a Senate Democratic leadership aide.

The aide familiar with Senate Democratic leaders' plans said if Burris tries to enter the Senate chamber, the Senate doorkeeper will stop Burris. If Burris were to persist, either trying to force his way onto the Senate floor or refusing to leave and causing a scene, U.S. Capitol Police would stop him, said the aide.

"They (police) probably won't arrest him" but they would call the sergeant-at-arms," the aide said.

When asked about what would happen if he shows up and tries to be seated, Burris told the Chicago Tribune that he's, "not going to create a scene in Washington." He added, "We hope it's negotiated out prior to my going to Washington."

Burris told CNN that, "We're certainly going to make contacts with the leadership to let them know that the governor of Illinois has made a legal appointment. And that I am currently the junior senator for the State of Illinois. And we're hoping and praying that, you know, they will see the reason in appointing me as a very qualified, capable, able and ready-to-serve individual."

Coincidentally, the senate sergeant-at-arms, Terrance Gainer, served in the Illinois government at the same time as Burris. Gainer was the director of the Illinois State Police from 1991-95. Burris was the Illinois attorney general from 1991-95.

Under Article I, Section 2, Clause four of the US Constitution, the Chief Executive of a state may fill vacancies in the senate. Those that have left the House must go through a special election. Many are arguing that both Houses are the ultimate judges of their own elections, which is true, and it would be true if Mr. Burris were elected, but he is not. He has been appointed. There is nothing, legally speaking, that the Senate Democrats can do to prevent him from assuming his rightful seat. I have already been over the legalities of this appointment, and the ramifications if the Democrats choose to push the issue that far.

But Mr. Burris is far from being out of the woods yet. While serving as AG of Illinois, and running for governor, Mr. Burris tried to keep an innocent man on Death Row:

Former Illinois attorney general Roland Burris, embattled Gov. Rod Blagojevich's pick to replace Barack Obama in the Senate, is no stranger to controversy.

Public fury over the governor's alleged misconduct has masked the once lively debate over Burris' decision to continue to prosecute, despite the objections of one of his top prosecutors, the wrong man for a high-profile murder case.

While state attorney general in 1992, Burris aggressively sought the death penalty for Rolando Cruz, who twice was convicted of raping and murdering a 10-year-old girl in the Chicago suburb of Naperville.

The crime took place in 1983. But by 1992, another man had confessed to the crime, and Burris' own deputy attorney general was pleading with Burris to drop the case, then on appeal before the Illinois Supreme Court.

Burris refused. He was running for governor.

"Anybody who understood this case wouldn't have voted for Burris," Rob Warden, executive director of the Center on Wrongful Convictions, told ProPublica. Indeed, Burris lost that race, and two other attempts to become governor. B

Burris' role in the Cruz case was "indefensible and in defiance of common sense and common decency," Warden said. "There was obvious evidence that [Cruz] was innocent."

Deputy attorney general Mary Brigid Kenney agreed and eventually resigned rather than continue to prosecute Cruz.

Once Burris assigned Kenney to the case in 1991, she became convinced that Cruz was innocent, a victim of what she believed was prosecutorial misconduct. She sent Burris a memo reporting that the jury convicted Cruz without knowing that Brian Dugan, a repeat sex offender and murderer, had confessed to the crime. Burris never met with Kenney to discuss a new trial for Cruz, Kenney told ProPublica.

Before it looked like Governor Blagojevic had called Senator Reid's bluff in making this appointment, and that Senator Reid and his colleagues would have no choice but accept Mr. Burris. It now seems that the tables are turned, and they now have some firepower on this issue.

Though the report does not go onto say if Mr. Burris was reprimanded for his actions, it is clear that, to him at least, the governor's chair trumped the life of an innocent man. The Senate Democrats would have an argument regarding his fitness to be in the Senate. Whether that will fly with the Supreme Court is not known but I believe it is highly doubtful. In Powell v. McCormack the Supreme Court ruled that the House could not, by a two-thirds vote, exclude a member from being in the House, they they did hold that one could be expelled. They also held that the Senate has the same rules to follow as the House does.

The only way they can get rid of Mr. Burris is to seat him, then vote to expel him, and we are fairly certain that Harry Reid can get the two-thirds majority he needs. That would be sixty-six votes. He already has fifty-eight. Digging up eight more votes cannot be that hard if enough people in the Senate want to reject Mr. Burris.



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