Fun with process: Who is Terrance Gainer?

Want to sound smart and well-informed about legal and political process at your next cocktail party? Then the name to know in the coming weeks is Terrance W. Gainer.

Who is he? And why do we care?

He is the Sergeant at Arms and Doorkeeper of the United States Senate, the law-enforcement and administrative manager for the body. If, as anticipated, the Senate votes to reject Roland Burris's appointment to the Senate and refuses to seat him, it is Gainer (or officers working for him) who enforce that order by keeping Burris off the Senate floor and arresting him, if necessary. (Gainer, a Chicago native, former Chicago police officer, and official in Illinois government, apparently knows Burris and has been in contact with him to try to avoid a confrontation).

More importantly, if, as anticipated, Burris sues, Gainer will be the defendant. And (although I doubt we ever will get that far) if the suit is successful, it is Gainer who would be enjoined and it is Gainer who would be held in contempt for failing to obey the court's order. And (although I am absolutely certain we never will get this far) it might be Gainer who would be taken to jail by U.S. Marshals (the executive-branch body responsible for enforcing judicial orders) to enforce the contempt citation.

Under the Speech or Debate Clause, members of Congress cannot be sued for conduct taken in a legislative capacity and certainly cannot be enjoined to act or not act in some way in their legislative capacities. In other words, a federal court could not order individual members of the Senate to vote to seat Burris. What a federal court can do is order the responsible executive/administrative officer (the sergeant at arms) to stop interfering with Burris's attempts to take his seat; in other words, stop enforcing the Senate vote excluding Burris and instead to follow the court's order that Burris is constitutionally entitled to that seat and should not be prevented from taking that seat. This creates an odd tug-of-war as Mr. (Sergeant?) Gainer is caught between adhering to the Senate orders he is required to carry out as part of his job and adhering to the judicial order that he is required to carry out on pain of contempt and possible jail.

The strangeness of this scenario lends practical ammunition for those who argue that the Senate has unfettered power to exclude Burris based on doubts about his appointment and that the exclusion is non-justiciable under the Political Question Doctrine. Federal courts do not want to exercise power in situations in which their orders are likely to be ignored or in which the enforcement of their orders would create the sorts of separation-of-powers headaches (and, frankly, unfairness to Mr. Gainer) described.

To the extent those arguments fail, however, Gainer will be the legal (if not political) heart of the dispute, not Harry Reid or the Vice President (current or incoming) or the President Pro Tem. Remember the name.