Burris has history on his side

By DeWayne Wickham

Someone should introduce Harry Reid to William Marbury.

Reid, the Senate majority leader, has blocked Roland Burris' appointment to that body, saying his paperwork is not in order. This is the best argument Reid has been able to come up with to keep embattled Illinois Gov. Rod Blagojevich from filling the Senate seat vacated by Barack Obama.

Federal prosecutors have accused Blagojevich of attempting to sell the Senate seat, though Burris isn't connected in any way to this alleged criminal act. By all accounts, the former Illinois attorney general is an upstanding guy. Still, Reid believes that Blagojevich, who has neither been convicted of a crime nor impeached, should not be allowed to exercise his legal right to fill the vacancy.

While his objection to Blagojevich's appointment of Burris might be a good politics, Reid stands on really thin legal ice - because of Marbury.

Back in 1801, Marbury was appointed justice of the peace in the District of Columbia by outgoing president John Adams. But Thomas Jefferson, who replaced Adams in the White House, ordered his secretary of State not to execute the paperwork needed to confirm Marbury's appointment.

Two years later, the Supreme Court issued a ruling that seems to shatter the legal basis for Reid's action on Burris' appointment.

The court's Marbury v. Madison ruling is best known for establishing the principle of judicial review, but the high court also ruled in the case that the secretary of State's failure to perform a "ministerial act" did not negate Marbury's appointment.

"The appointment, being the sole act of the president, must be completely evidenced when it is shown that he has done everything to be performed by him," Chief Justice John Marshall wrote in that historic ruling.

In other words, the absence of some paperwork did not negate the president's authority to name Marbury a justice of the peace.

Like Adams, Blagojevich was exercising his exclusive authority to fill a federal vacancy. Blagojevich did this on December 30 when he issued a written announcement of Burris' appointment. The following day, the senior legal adviser to Illinois Secretary of State Jesse White sent a letter to Burris' lawyer acknowledging the governor's action.

"This letter is to inform you that the Office of the Secretary of State... has made a register of the appointment of Roland Burris to the United States Senate to fill the vacancy left by President-Elect Barack Obama, specifying the person appointed, the office conferred, and the date of the appointment," Nathan Maddox wrote.

But White refused to sign the certificate of appointment making Blagojevich's selection of Burris official.

Under the 17th amendment to the U.S. Constitution, which provides for the direct election of U.S. senators, state legislators can give governors the power "to make temporary appointments" to fill a Senate vacancy until the next election. And that's just what they did in Illinois.

Signing a certificate of appointment is a ministerial act, not an executive function. Unlike Blagojevich, Illinois' secretary of state can't fill a Senate vacancy. He's not required to pass judgment on the appointment, but simply to acknowledge it has occurred.

White's refusal to sign the certificate, he now admits, should not be allowed to keep Burris from taking his seat in the Senate.

Like it or not, Burris is the junior senator from Illinois. Reid's refusal to accept this fact and White's refusal to acknowledge it do not invalidate his appointment. Having been officially named Obama's successor, Burris will retain this Senate seat until his term expires - or until he succumbs to the pressure and resigns.