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The End of Blagojevich Style Senatorial Appointments

Don Rose 16 August 2010 4 Comments

By the time you read this we may or may not know whether impeached Gov. Rod Blagojevich is found guilty of trying to auction off President Barack Obama’s former U.S. Senate seat, to which he wound up appointing Roland Burris for the two years remaining in Obama’s term.

But a local federal appellate court decision, with national implications, may curtail the ability of any governors to make such long-term appointments—depriving them of the perk Blago described as “f—ing golden,” worth a huge campaign contribution or high-paying job.

The decision can affect more than 40 states, because a half dozen already require prompt elections to replace senators who die or leave office. The governors of those states may make short-term appointments—ideally only a few months—until a special election is called and the people exercise their right to elect replacement senators. (All governors must call elections quickly to replace congressmen—in Illinois it’s 115 days—and no appointments can be made.)

This all revolves around interpreting the 17th Amendment to the U.S. Constitution, which first gave us the right to elect senators, replacing the frequently corrupt process of having state legislatures appoint them—one of the founding fathers’ worst ideas.

The Amendment, ratified in 1913, states:

“When vacancies happen in the representation of any state In the Senate, the executive authority of such state shall issue writs of election to fill such vacancies: Provided, that the legislature of any state may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.”

Most states, including Illinois, presume the directive “shall issue writs of election” is not a time imperative and that “temporary appointments” can last two years or more, but typically until the next congressional election, as Blago did here.

Other legal analysts, notably Chicago author and labor lawyer Tom Geoghegan, believe the Amendment constitutionally mandates swift special elections with only brief, interim gubernatorial appointments. He made the case in a widely lauded, scholarly but highly readable, op-ed in the New York Times early in 2009.

He and former independent alderman Marty Oberman followed up with a federal lawsuit, seeking a court order enjoining Gov. Pat Quinn—who by then had succeeded the impeached Blagojevich—to call a special election. Quinn and Sen. Dick Durbin earlier announced they favored one but backed off when top Democrats suggested the Blagojevich scandal could cause their party to lose the seat. Attorney Gen. Lisa Madigan agreed the 17th Amendment permitted but did not require Quinn to call an election.

Quinn refused to do so and Madigan defended him in court.

Oberman pleaded the case before District Judge John Grady, who threw it out, based on a 1968 New York precedent in a similar matter, and refused to enjoin Quinn. The Geoghegan-Oberman suit argued powerfully that for several reasons, based on a host of technical issues, the New York case was wrongly decided and should not be a guiding precedent.

Last September, Oberman appealed Grady’s decision to a three-judge appellate panel. On June 16 this year, in a remarkable opinion written by Judge Diane Wood—who is on the short list for a Supreme Court nomination—the panel agreed that Grady need not issue an injunction calling an immediate election, but did agree that the New York case was not germane to the constitutional question and should not be used as precedent.

More importantly, Wood’s opinion agreed that under the 17th Amendment, prompt special elections are constitutionally mandated and returned it to Grady. The result is that come November 2, Illinoisans will have two senate elections: one for the normal six-year term, the second to replace temporary appointee Burris for the balance of time between the election and January 2, the day before next congress convenes and new members sworn in. The candidates in both elections will be the same: Democrat Alexi Giannoulias, Republican Mark Kirk and Green Party LeAlan Jones.

Yes, it’s a weird situation, but that’s nothing new in Illinois.

Beyond the quirk lies more litigation. Judge Wood’s opinion might or might not be upheld if it winds up in the Supreme Court. Then again, Madigan might not appeal the case and it could become the established precedent for similar suits in other states. There is always discontent with gubernatorial appointments.

The media mainly have missed the point, but this case may pave the way for greater democracy throughout the nation. Now that would really be f—-ing golden!


Don Rose is a regular columnist for the Chicago Daily Observer


  • John Powers said:

    Hey Don,

    I have always found this process bewildering given the reasonably clear
    Article V Section 9 of the Illinois Constitution which states “The Governor shall nominate and, by and with the advice and consent of the Senate, a majority of the members elected concurring by record vote, shall appoint all officers whose election or appointment is not otherwise provided for”,

    which might lead an Illinois resident to think that the Illinois Senate could have been making an effort to provide “advice and consent” on the appointment of Roland Burris to the US Senate.

    I think the Illinois Senate just capitulated on this one to try and avoid Blaogojevich. And we are stuck with the resulting Roland Burris.


  • Pat Hickey said:

    Burris, like Todd Stoger, was viewed by the really, really, really smart folks, like Tom Hynes, Emil Jones, Cullerton, Barbara Flynn Curry, Daffy Dick Durbin, and others as some kind of harmless political caulk – wedge them in and they might not do any harm. However . . .

  • JMK said:

    …and thus BFC conveniently misplaced documents showing Burris quid pro quo-ing with Blago during the Burris hearings.

  • Bessie said:


    An article worth reading: Rostenkowski Reflect his Thoughts on Kenndedy, Daley, Obama and more…kinda funny and not what I expected, enjoy.

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