Roland Burris, continued

An incident in Burris' career has come to light in the "internets" (think the O.E.D. will adopt that as a word?). The links are too numerous to provide here but any Google search using "Roland Burris" and "Rolando Cruz" will bring them up. The basics are that, in 1985, Rolando Cruz had been convicted of a capital offense and was on death row. In 1992, Roland Burris was the Illinois Attorney General and had received notification from the Assistant Attorney General who was fighting Cruz's appeal that there had been prosecutorial irregularities in the investigation of sufficient scope that she couldn't put her name on the appellate brief. Burris's response was to take her off the case and continue to fight the appeal, without reexamining the case himself. Justice proceeded notwithstanding and Cruz is now a free man, helped in part by DNA evidence exonerating him.

Burris at the time had ambitions for higher office. He ran in, and lost, primaries in 1994 and 1995 and the conclusion that his decision not to reexamine the Cruz case was because of his political ambitions is inescapable. Although such pusillanimous conduct would've been a very good reason for Blagojevich not to have selected him (assuming, with more hope than substance, that the Governor would've been motivated by an ethical consideration), it probably isn't sufficient reason for the US Senate to deny him his seat. First, it doesn't tie in to his selection sixteen years later and so doesn't come into the ambit of Article I, Sec. 5. Second, it's hard to see that kind of low political pandering as a disqualification for elective office, rather the opposite. I am reminded of Bill Clinton's actions regarding Ricky Ray Rector when the former was running for President in 1992. Rector was on death row. The issue wasn't if he had committed the crime but that, shortly before he was arrested, he shot himself in the head in an apparent suicide attempt that had effectively left him lobotomized. Clinton flew back to Arkansas in the middle of the campaign to sign off on the execution, in an action that was partially meant for public consumption. However, Rector was so mentally disabled that when the guards took him away for execution, he left his dessert on the grounds that he was saving it for later. Burris's action is hardly worse than executing a mentally incompetent inmate as a campaign ploy.

The other interesting comment I saw was a piece by Matthew Rothschild of The Progressive calling on Harry Reid to let Burris have the Senate seat. My first comment is that simply citing Powell v. McCormack isn't sufficient. This is more of an elections and returns issue than a qualifications issue. The other issue is that Blagojevich hasn't been convicted yet--

And there’s a larger point here, too: A prosecutor, by accusation alone, should not be allowed to throw someone out of elective office.

Remember, Blagojevich hasn’t even been indicted yet, much less convicted.

To deny him his authority on the basis of a criminal complaint is to hand a prosecutor enormous power.

The problem with that argument is that the presumption of innocence is part of due process, without which no one should be deprived of life or liberty. The Senate's action would only amount to not letting Burris into the Senate. The fact that Art. I, Sec. 5 makes each house of Congress the "final judge" in such matters means that the Senate doesn't have to wait for the judiciary to make it's determination of Blagojevich, it can decide independently if the Burris selection is tainted. In doing so, it isn't handing power to a prosecutor but exercising its own. Rothschild's comparison to Ken Starr is considerably off point.

I reiterate my point that there doesn't seem to be any taint on the Burris selection, and thus the Senate will have to seat him--but the Senate does get to make an independent determination of that.