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December 30, 2008

Karl Rove on the Burris Appointment

Hannity & Colmes

COLMES: And that's not all. The president-elect said late today that the Senate cannot accept the Burris nomination and that he supports Senate majority leader Harry Reid's statement of earlier in the day that Senate Democrats will refuse to seat Blagojevich's selection.

Back home in Illinois the embattled governor did fare much better with the Illinois lieutenant governor joining the chorus. In fact, he did not fare better with the lieutenant governor, calling the appointment an insult to the people of Illinois.

And what about those people of Illinois? They seem to be left twisting in the wind tonight. Unsure if they have a new senator or not.

Joining us here to help sort out this mess, FOX News contributor Karl Rove.

Happy New Year, Karl. Good to see you. Thanks for being here.

KARL ROVE, FOX NEWS CONTRIBUTOR: Thanks, Alan. Ain't it fun?

COLMES: What do you think looking at all this?

ROVE: Well, first of all, Roland Burris is an interesting choice. On the one hand, he's the first African-American ever elected to statewide office in Illinois. But he was last elected to office 18 years ago in 1990.

He has run nine times for statewide office and won four times. He even took on Mayor Daley in 1995 in a disastrous race. I mean, he' s pretty close to a perennial candidate. The second thing that's interesting about this is, I love how Harry Reid says that he's going to keep senator - - nominate Senator-designee Burris from taking a seat in the Senate.

There's one problem standing in his way. It's called the United States constitution. The constitution says there are three qualifications to be a senator. That you got to live in the state, be a citizen in the United States for nine years, and be 30 years old.

And there's no ability for the Senate to deny seating, excluding somebody, refusing to seat somebody unless they fail to meet those qualifications.

COLMES: By the way, Burris did win -- he won elections as comptroller and attorney general. He has won elections in Illinois -- albeit it's been a few years since.

And what about the issue of race here, the idea that they're almost daring Democrats to deny an African-American -- would be the only African- American in the Senate denying him the seat?

ROVE: Well, look, there are all kinds of political implications for this. I mean the Democrats have an African-American waiting to take a seat in the United States Senate that is now held by the only African-American in the body.

And again, I repeat, there is -- I -- there is a very interesting Web site maintained by a professor of law out of UCLA, Eugene Volokh, who points out that the Congress and the Supreme Court have already been through this drama once before.

And he drew my attention today to Powell vs. McCormick, 1969. Adam Clayton Powell in 1967 was-- the Congress refused to seat him after he was elected in 1966. They refused to take him into the House of Representatives on a, on a majority vote. They refused to seat him and the Supreme Court later held that that was unconstitutional.

That the House had the ability only to expel a member and that would require a two thirds vote. That they had no power to refuse to seat him as long as he met the qualifications under the constitution.

So again, I hear what Senator Reid and Senator Durbin are saying, that they don't want the nominee of a disgraced and potentially, you know, to- be-jailed governor of Illinois seated. But on the other hand, he has -- he has not yet been convicted of a crime or removed from office. And he has a right to appoint somebody to the Senate seat.

COLMES: You've also -- you've got the attorney general of Illinois saying he will not certify this appointment.

ROVE: The secretary of state.

COLMES: Secretary of state. Yes.

ROVE: Yes. And the quest ion then is -- will somebody -- I'm not a lawyer. But will somebody file a writ of mandamus to require him to do his official job and certify -- you know, does he have a ministerial ability to deny the -- governor's decision to appoint this person?

Or does he have a responsibility simply to, you know, sort of docket it -- and put it on the docket, accept it, you know, certify the fact that.

COLMES: Well, let me ask you this. If they deny the governor -- if they illegally deny Blagojevich's appointment, can he, the governor, challenge that and what if by the time he challenges it he's impeached and convicted and out of office?

What about that scenario?

ROVE: Well, we have this case here of Powell vs. McCormick where this happened and it took two years for Adam Clayton Powell to win his decision but he won his decision. And my suspicion is, that unless the Warren Court decision would be tossed out by the Roberts court today, 30 some odd -- 40 some odd years later, then we're likely to see -- there would be a quick resort to the courts and a citing of Powell vs. McCormick. Perhaps even a quick resolution to it all.

RICH LOWRY, GUEST HOST: Hey, Karl, it's Rich. Thanks so much for being with us tonight.

Have you, Karl, ever seen a more blatant and naked use of the race card than we saw in that press conference? Bobby Rush, he even used the lynch word.

ROVE: Pretty -- astonishing. And, you know, it's -- this whole circus, this whole drama is unrolling in a way that just is so unseemly. I mean it's just -- it's embarrassing for the state of Illinois. Now it's becoming embarrassing for the Democratic Party, because, you know, they do not want to accept this man.

And Alan's right. He was elected as comptroller in the `70s and `80s. He was elected as attorney general in the `90s but since then he's run for governor three times and lost in the Democrat primary. He's run for mayor of Chicago against Rich Daley and lost badly.

I mean he is.

LOWRY: Yes. He's a real Harold Stassen thing going on.

ROVE: Right, exactly.

LOWRY: Now, Karl, you're right. This has become -- going to become a constitutional issue very quickly. But what Harry Reid is s saying and the statements he's put out and the statements he made to reporters is that the Senate has a broad power to determine its own rules and its own members.

And it's as if this appointment were the product of a corrupt election. And if there are corrupt elections the Senate could say no, we're not going to seat you. And -- analogously they can do the same thing here because it's a corrupt process.

ROVE: Well, that's predetermining the outcome of the -- of the complaint against Governor Blagojevich. And again, it would set a very dangerous precedent.

Do we really want a -- political party in the United States Senate to say we will ignore the constitution which sets three qualifications to be a senator, 30 years of age, nine years a citizen, resident of the state from which you're representing? Do we want them then to expand that to say, you know what, we have undetermined other standards that we will apply whenever we like in order to deny on a majority vote whether or not somebody can seat -- be seated?

What would happen in -- an election which there were, say, 50 Republicans and 50 Democrats, if 50 Republicans said we're going to deny you the ability to seat the 50th Democrat so that this body is split 50-50. And instead we're going to deny that and require somebody else to be sent in his place.

That would be very bad precedent. Very bad.

LOWRY: Now, Karl, couldn't this all have been avoided if they just gone to a special election? There was a period there where the senior senator from Illinois, Dick Durbin, said there should be a special election. Blagojevich himself said there should be a special election but they backed off. Why?

ROVE: The lieutenant governor said there should be election. Many Democrats in the legislature said there would be an election. Because it turned out they could conceivably lose the election, the Democrats could, because of public reaction against Blagojevich.

And again, this -- they've succeeded in turning a short-term issue into a much larger and bigger-term issue and may actually give the Illinois Republicans the ability to get up off of the mat and get back into the game if they push hard on the issue.

LOWRY: OK, Karl, we'll have more with Karl Rove on the other side of the break. Plus the media's love affair with Barack Obama continues as the president-elect vacations with his family. Bernie Goldberg is here to tell us why he thinks they've gone too far this time.

Then we continue to follow the controversial appointment of Roland Burris. He's a former Illinois attorney general. But what else do we know about him? Our panel weighs in next. Stick with us.

(COMMERCIAL BREAK)

LOWRY: We continue now with Karl Rove.

Karl, let me bounce the theory off of you because there's been some speculation that the deeper play here by Governor Blagojevich is that he wants a racialized controversy over this appointment, because he wants to sway potential jurors if he goes to trial naturally in Chicago.

What do you think of that?

ROVE: Wouldn't surprise me. He may also want to sway -- and the more immediate, he may want to sway people inside the legislature. I mean it's -- this gives him some allies who might, who might provide him the margin to keep from being impeached.

Burris was very active in his early years. He used to be the executive director of PUSH back in the `70s...

LOWRY: Yes.

ROVE: . before he got elected state comptroller. So he does -- I don't want to diminish his political ties throughout Illinois politics. It's just that in the recent years he hasn't been a very successful politician himself.

LOWRY: Now what do you think Republicans in the Senate, their posture should be on this? Because Senator Cornyn, in my mind, one of the best senators the Republicans have, came out with a statement today urging Democrats to reject the Burris appointment and go to a special election.

ROVE: Well, I think they ought to have a special election. I mean the -- this is going to be a tainted appointment. I'm a little bit surprised that Burris would take it except, you know, he's 71, this may be his last chance at glory.

LOWRY: Sure.

ROVE: If you run three times for governor in the Democratic primary and lost each time it says something about your desire to sort of occupy a central position on the stage.

But again -- and I love John Cornyn. He's my neighbor and my friend and my senator. But again, I find it hard to believe that the Senate is going to be able to find a legitimate and constitutional way to deny Burris his seat. They may deny it to him. But I suspect when they, when they go up through the legal chain, they will find they don't have the power to exclude. They do have the power to expel.

LOWRY: Karl, let me get you on another contentious Senate matter.

What is your read on the state of that Minnesota recount between Al Franken and Norm Coleman at the moment?

ROVE: Well, every day that it goes on, that the Democrats are able to keep the count going further and longer and longer, and the worse it gets for Coleman. I worry about it a lot.

I mean Coleman -- ended the election night with more votes than he's had on virtually any day since then. And if you keep -- the rule of thumb is if you can keep counting, somebody will find a way to count enough to get themselves finally ahead. And then that's the point at which they will declare the contest over.

LOWRY: So you -- would you have a pretty cynical view of this? Do you think the Democrats are basically manufacturing or have manufactured enough votes.

ROVE: You know.

LOWRY: . up there to get Franken over the top?

ROVE: I'm not -- I'm just knowing what I read in the newspapers.

LOWRY: Yes.

ROVE: But for example, the ability to count -- they have supposedly lost 100 some ballots, virtually all of which supported Franken. And they're counting them despite the fact that they cannot produce the pieces of paper upon which that vote is supposedly based.

You know, that worries me. And, you know, we've seen a lot of twists and turns in this particular contest so far. But the longer it goes on, the worse it is for Coleman I think.

COLMES: Hey, Karl, let me.

ROVE: He's marvelous member.

COLMES: Let me pick up something.

ROVE: Yes.

COLMES: . you said a few moments ago about whether it was a good idea for Burris to accept this offer.

Did he taint himself? Obviously, this is not about Burris. Any tainting is really about the governor. But did he cause problems for himself by accepting the offer in the first place ?

ROVE: Well, look -- sure, I think he did, I mean, because let's assume he gets -- first of all, it will be a battle to get himself seated in the Senate. Even if -- even if I'm right, and Professor Volokh is right in his reading of this, and if Powell vs. McCormick holds up and he gets seated, it's a battle and it takes some amount of time.

And then once he gets there, he still has the taint of having been appointed by Blagojevich. He's a lobbyist. He represents Indian tribes. You know, he'll have to make all of those relationships transparent. He'll have to report them on his ethics forms. That could be another string of problems for him.

So you know, I don't know. But it just -- it strikes me this is a no- win situation for whoever is appointed to the seat and a no-win situation for the people of Illinois.

COLMES: Not only a lobbyist, he's also a contributor to Blagojevich. Apparently, he's given a few thousand dollars over time to Democrats and Blagojevich himself. Is that a problem?

ROVE: Well, I worry less about that. Because look, he ran against Blagojevich in 2002. Now, granted, once he lost the primary, being a loyal Democrat he was vice chairman of Blagojevich's election campaign and played a role in his transition in 2002-2003.

But nonetheless I just -- this is an unseemly situation that has gotten more unseemly today. I mean that news conference was brash, bold and aggressive and abrasive. And Burris' appointment obviously has created all kinds of difficulties for Democrats.

COLMES: Let me come at you from a different angle here because is there a case to be made that Blagojevich, by his own statement last week, deserves the right to be heard, deserves his day in court, innocent until proven guilty, and has a right to continue doing his job, the job he was elected to do until such time as they can prove a case against him?

ROVE: Well, that's -- the point. I mean, you know, we do have a presumption of innocence in this country. We're not France where they presume you're guilty until proven innocent. Here you're innocent until proven guilty.

The legislature did not move to take the power of appointment away from him. The attorney general attempted to get the Supreme Court to declare the office vacant. And they unanimously rejected, the Illinois Supreme Court unanimously rejected that appeal.

This is a problem of the politicians -- in Illinois. If they had agreed to do a special election, pass the legislation, passed it over his veto, we wouldn't have this situation today.

COLMES: One quick question about New York. Caroline Kennedy, good idea or bad idea?

ROVE: Bad idea.

COLMES: Why?

ROVE: I don't think she's qualified and she has done nothing over the years to sort of demonstrate a interest in public affairs that is anything other than superficial. And, you know, she's -- the last couple of weeks have not been kind to her.

COLMES: Yes.

ROVE: . as she's made her rounds in the state.

COLMES: All right. Well, thank you very much, Karl. Have a very happy new y ear. Thanks for being with us.

ROVE: Happy new year to you. You bet.

COLMES: Appreciate it very much.

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