Dano: If it's Legal, Let Burris Sit in the U.S. Senate

Welcome back, folks. This week, Reed and I are revisiting political matters, mostly because there's a lot to discuss, but also because we sense our readers prefer political topics to non-political ones. Feel free to correct our assumption if it's wrong.

The coin flip has me arguing this week that the United States Senate should not block the seating of former Illinois Attorney General, Roland Burris, as Barack Obama's replacement. My arguing this position requires that indicted Governor, Rod Blagojevich, was within his legal rights to make this appointment (which I believe he was), and, further, that the Illinois Supreme Court will either force the reluctant Illinois Secretary of State to certify the appointment, or will determine that certification is not legally necessary (these issues are yet to be determined). As of Tuesday, January 6th, the U.S. Senate has refused to seat Burris on the sole basis that his paperwork is not certified by the Illinois Secretary of State. I will proceed as if these issues will be taken care of, such that the U.S. Senate will be saddled with this seating decision without regard to technical impediments.

A little housekeeping for anyone who may not know it: the United States Senate does not have to allow anyone to hold a Senate seat, even if they were legally and unquestionably elected by the people of their state. All it takes is a 2/3 majority vote for the Senate to deny someone a Senate seat, so the issue at stake here is more a moral or ethical one than a legal one.

Those who would suggest that the Senate should deny Burris the seat are, most often, relying on the notion that the appointment itself was inappropriate because Illinois Governor Rod Blagojevich has been indicted for corruption -- specifically, for trying to "sell" Obama's vacated Senate seat for his own personal gain. Current Illinois Attorney General, Lisa Madigan, asked the Illinois Supreme Court to strip Blagojevich of his Gubernatorial duties (including the Senate appointment) pending the outcome of legal investigations. They denied her request. Every Democrat in the U.S. Senate asked Blagojevich not to make any appointments, as did the Illinois legislature and most other officials in that state. By and large, the Illinois electorate also appears to have been against the Governor's action. But the rub is that he hasn't been convicted of any wrongdoing, yet. So, what's the deal?

Two Kinds of Justice

This topic is pretty easy for me, because, as a former paralegal and a current criminologist, I have studied law extensively. For those of you who very well understand U.S. jurisprudence, please forgive the "professorial tone" of the following paragraph; most people have not studied these issues, so a little background to support my point may be necessary.

There are, in the U.S., two distinct kinds of justice -- procedural justice (meaning that outcomes are just, based upon the use of proper legal procedures), and substantive justice (meaning outcomes are just, based upon the facts as determined by the finders of fact). Most of us believe, in our hearts, in the supremacy of substantive justice over procedural justice. Remember the national outcry when O.J. Simpson was acquitted of the murders of Nicole Brown Simpson and Ronald Goldman? His acquittal was actually based upon the findings of fact made by the jury (sounds like substantive justice), but the jury's findings were greatly affected by law enforcement's procedural mistakes. In the United States, procedural mistakes, especially deliberate procedural wrongdoing, is thought to be as egregious as Simpson's alleged criminal acts. In fact, all appeals of criminal convictions must be based on procedural mistakes or wrongdoing, not upon the findings of fact. Note to law enforcement: DON'T EVER TRY TO FRAME A GUILTY PERSON. The upshot of this is that, no matter how we may disagree with the outcome, Simpson was appropriately acquitted of those murders from a procedural justice point of view. So, what does this have to do with Blagojevich appointing Roland Burris? Read on.

The Law is the Law

Blagojevich has not been tried on the charges for which he was indicted, no less convicted. "Innocent until proven guilty" remains the standard upon which we base our legal procedures. There has not been even a single formal release of evidence against Blagojevich, because there has been no formal prosecution. Yeah...I believe, as many do, that he probably is guilty as charged -- the man is an unpleasant person who seems inclined to abuse power in the ways he has been accused of abusing it. But, again, this is not sufficient to call him a guilty man.

Blagojevich remains the duly elected Governor of Illinois, and the law says that, as such, he alone has the ability to appoint a replacement for Obama as U.S. Senator from Illinois. The law doesn't require that he do so, but he has the sole ability. Because the Illinois Supreme Court has elected not to act against him, the Illinois Legislature is the only remaining legal body with the ability to modify the Governor's procedural rights (presumably by impeaching and successfully prosecuting him for some crime or crimes). This has not occurred. Therefore, as distasteful as it seems, Governor Blagojevich was within his rights as Governor of Illinois to appoint Roland Burris to replace Obama.

The U.S. Senate "Calculus"

So the question for the U.S. Senate becomes an ethical one: Should we allow the man appointed by the tainted Illinois Governor to hold a Senate seat, or should we deny his entry and wait for the people of Illinois to replace Obama in a new election? It is clear that they are leaning toward denying Burris the seat, but this is a mistake.

The fact is that U.S. Senators are lawmakers. As such, they should be the standard-bearers of impeccable legal procedure. In this case, they should recognize that Burris's appointment was legal and procedurally allowable. More importantly, however, denying him the seat based upon "gut feelings" about Blagojevich's guilt, while within their rights, amounts to convicting Blagojevich in a kangaroo court. I, personally hold U.S. Senators to a higher standard than that. Because Blagojevich was not actually convicted of wrongdoing, there is simply no logical reason to suggest that Burris is not a valid appointee. Remember, Roland Burris has not been accused of wrongdoing, and was, in fact, the Attorney General in Illinois who ran unsuccessfully against Rod Blagojevich for Illinois Governor. While Burris has also previously run for the U.S. Senate and been denied by the voters, this appointment is legal. The Illinois voters will have their chance to correct any "mistake" they feel has been made in the next election cycle. Members of the U.S. Senate, I fear, are playing politics at the expense of procedural justice.

Really?

Should Roland Burris have accepted the nomination? There's another can of worms, but, in my humble opinion, it's irrational political suicide. Maybe being irrational and suicidal are reason enough for the Senate to deny him the seat.

Naw...