Just seat Burris and be done with it

( - promoted by Bob)

Well, the Democrats, both in Illinois and DC, have screwed this one up to a fare-thee-well.  They’ve been outmaneuvered by perhaps the least popular politician in the country (that would be Illinois Gov. Rod Blagojevich), and there isn’t a damn thing they can do about it.  They now find themselves in an impossible situation with no good options.  A fine way to start out the new era of change that has come to America.

How did they get themselves here?  Let us count the ways.


  • As soon as Blago was arrested, there was a flurry of activity around the eminently sensible idea of changing Illinois law to provide for a special election instead of a gubernatorial appointment to fill Obama’s Senate seat.  But that effort sputtered out for the most pathetic of reasons.
    State lawmakers had considered that option, but Democrats, who control the House and the Senate, had dropped the idea. An election, which Democrats complained was too expensive, would mean Republicans would have an opportunity to win the seat.

    “Too expensive”?  Please.  Democracy costs money — just get over it.  The real reason the Dems didn’t change the law is almost certainly because it would give the GOP a shot at claiming the seat.  And that is a totally unacceptable reason for their course of action.  Deciding not to change a bad law, under circumstances where leaving the law in effect was almost guaranteed to lead to this very catastrophe, is the height of irresponsibility.  Heckuva job, dickheads.

  • Meanwhile, in Washington, Harry Reid & Co. have been piously proclaiming that they might refuse to allow anyone Blago names to take office.  On Dec. 10, Reid wrote a letter (also signed by all the other Democrats) to Blago which stated:
    Please understand that should you decide to ignore the request of the Senate Democratic Caucus and make an appointment we would be forced to exercise our Constitutional authority under Article I, Section 5, to determine whether such a person should be seated.

    And yesterday, when Blago made his announcement that he was appointing Roland Burris to fill Obama’s vacant Senate seat, Reid stated — this time more emphatically:

    [A]nyone appointed by Gov. Blagojevich cannot be an effective representative of the people of Illinois and, as we have said, will not be seated by the Democratic Caucus.

    Problem is, there seems to be a consensus among legal experts forming around the idea that, in fact, the Senate cannot refuse to allow Burris to take office.  The constitutional authority to which Reid refers, Art. I, s. 5, reads:

    Each House shall be the judge of the elections, returns and qualifications of its own members….

    Well, there’s no “election” or “return” at issue here, so those two are out.  And the Supreme Court has already held that “in judging the qualifications of its members, Congress is limited to the standing qualifications prescribed in the Constitution” — that is, age, residency, and citizenship.  So there seems to be no way around the conclusion that Mr. Burris (1) is “qualified” to be a Senator, and (2) has been duly appointed to that seat, in accordance with state law, as permitted under the 17th Amendment.  If there’s a way around this, I sure don’t see it.

  • And so, the Illinois Democrats by their inaction have invited Blago to do exactly what he did (their cries of rage in light of Blago’s action ring particularly hollow, given their failure to prevent what could easily have been prevented), and the DC Dems have threatened to stop it, even though they probably can’t, which will make them look incredibly ineffectual.  Great.  Now, maybe what will happen is that Burris will be sworn in as a Senator, but will not be admitted to the Democratic caucus.  Oh, that’ll look terrific: the one black guy in the entire Senate — who everyone agrees has not himself done anything wrong — has to sit by himself in the corner.  And beyond the incredibly embarrassing appearance of it, that would also not be fair to the people of Illinois, who are not at fault here and who deserve two fully-functioning Senators.

Let’s just face it.  Blago won this round — he got to fill the seat, and he got to give the finger to all of his detractors in the process.  The Democrats should take their lumps and move on.  Burris will probably be a perfectly respectable Senator, and he’ll either retire in two years (he is 71 years old), or he’ll have to defend his seat in what will no doubt be a vigorously contested primary and general election.

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Discuss

102 Comments . Leave a comment below.
  1. A couple of caveats

    We need to be absolutely certain that Burris is not one of the unnamed candidates who discussed any quid pro quo.

    I also strongly object to Bobby Rush's injecting race into this matter.  It shouldn't matter if there are zero black Senators or 100.

    Otherwise, I would agree that Burris should probably be seated.  If the Lt. Governor becomes Governor maybe he could reaffirm Burris' appointment, even if just for appearances sake.

    • Why would the new Governor do that?

      It seems like there would be little upside for a new Governor to bless a tainted appointment.

      • To remove the taint...

        ...or at least ameliorate it.  If there's any question at all that there was something improper done vis-a-vis Blagojevich, the Lt. Governor (now Governor in this scenario) would basically be saying, "No really, folks; this Burris guy is a good appointment."  At least that's how I'd react as a constituent.  If Blagojevich appoints I'd be skeptical, but if the Lt. Governor reaffirms the appointment my skepticism would soften, if not disappear entirely.

    • I agree with your first caveat.

      If he's not on the quid pro quo list, then I agree confirm him and move on.  He looks to be extremely well qualified.  The public will soon forget the mess if the confirmation happens before Obama takes office.

      Reid is an idiot.

  2. I don't buy it

    I don't see why the Senate's power would extend to elections but not appointments when in fact appointments are far more likely to be abused. Are you telling me that if someone uncovered direct evidence that Burris was appointed as part of some corrupt bargain with Blagojevich that the Senate would still have no choice but to seat him? If that were to happen, I rather doubt that the Supreme Court would interfere.

    The best outcome would be for Burris and anyone else Blago tries to appoint publicly refuse to be appointed by him, because there is no question that anyone that appointed by him is going to be tainted by the association.

    • what happens when the best outcome

      can only exist in fantasy?  burris has already accepted the nod.

    • $quot;I don't see why the Senate's power would extend to elections but not appointments$quot;

      Because that's what the Constitution says.  I don't mean to be glib about it, but as far as I can tell it really is that simple.

      • Yes, you really do mean to be glib

        I wish I had a dollar for every "that is just what the Constitution says" argument I have read. The Constitution rarely turns out to get interpreted in the "obvious" way. The Supreme Court has been extremely reluctant to rule on Constitutional issues related to the Congress's internal regulation of its own powers.

        • Sorry Kev,

          but the "qualifications" issue has been settled.  Powell v. McCormack - the link is in the main post.  If you can find a contrary legal opinion, please post it, but don't substitute your wish things were otherwise for legal argument.

          • Sorry, you are still making a lazy argument

            You are basing your entire argument on one person's interpretation of Powell v McCormack. Have you even read through the court's opinion of that case?

            One significant difference is that Powell was elected, not appointed. That alone prevents this from being a slam dunk argument. One of the big points of that case was that the will of the people who elected him was being thwarted. That principle clearly does not apply in the present case. Quite the opposite in fact.

            In any case, I find it hard to believe that this Senate has enough backbone to refuse to seat him even if there had been a direct precedent allowing it.

            • Powell

              If anything, the fact that Powell was an election and this is an appointment means that Powell should apply a fortiori, since the constitutional text gives the Senate express power to judge elections.

              TedF

              • Not quite

                The argument would be that the Senate's power to judge elections applies to appointments as well, since in this case the reason that Burris would be rejected would be entirely because of the manner of his selection. That argument may or may not win in the SC, but I think that it would need to be considered.

            • Yes, Kev, I've read it. 'Nuff said, I think.

              • David - timing of the Constitution

                Karl Rove made the same argument as you last night.  I still have one question - when the Cosntitution was written, there WAS no direct election of Senators.  Does this give more consideration to the election vs. appointment argument?  To me, a verdict by the electorate has more weight than an appointment, and I can't help wondering if a companion decision to Powell wouldn't be appropriate.

                • Actually,

                  I think that the timing issue you raise only strengthens the argument that the Senate is powerless here.  As you note, there was no direct election of Senators in 1789, only of Representatives.  Hence, the original document requires that a vacancy in the House be filled by special election, but it says nothing about vacancies in the Senate, presumably because the framers intended to leave it to the state legislatures to name a replacement.  The 17th Amendment changed that by providing that Senators would be directly elected, and created a new means of filling vacancies -- either by special election, as in the House, or by temporary executive appointment.  The fact that the 17th Amendment actually creates a new means of filling a vacant seat, but does not in any respect change the "each house shall be the judge of the elections, returns, and qualifications" clause in Article I, to me strongly suggests that there was no intention to alter that clause.

                  Now, it may be that when the 17th Amendment was adopted, it was assumed either that the entire matter of "qualifications" was non-justiciable, or at least that "qualifications" had a much broader meaning than what the Court decided in Powell.  But that doesn't change the fact that the amendment simply does not change the "each house" part of Art. I s. 5.  I really don't see much of an argument the other way.

            • David, what's with the 3?

              Do you really think everything I wrote worthless? Come on now. I expect better of you.

      • I'm not convinced

        The Constitution, pre-1913, talks about the elections of Senators. In modern parlance, Senators weren't elected; they were chosen by the legislature of the state. In other words, yes, it's an election, but by a very small and select number of people.

        An appointment by the executive, therefore, is an election, with an even smaller number of people: one.

        My understanding, from what I've read elsewhere, is that there is case law to back this up. I'm not a lawyer and I've lost my references, so I don't know whether or not this is actually the case, but I wouldn't be so quick to discount it, David.

        • Pretty good...

          ... reasoning.  If you can't argue about the word 'election' in the constitution, you can certainly look for sources for the meaning of the word that supports your claim.  I don't know if it would fly, but the particular point certainly does raise an interpretation issue of the word's meaning (assuming it is reasonably supported by the record).

          I'll be glad to hear David's take on this particular wrinkle.  

          • $quot;election$quot;

            Election is also the Protestant/Calvinist word for when God elects who receives Grace and having faith and receiving mercy instead of justice like the reprobate. That's an election by zero people. So I agree, the framers definitely understood election as the act of being selected for a position by a higher authority, the word did not convey a public vote to people back then.

  3. technical questions

    burris has been appointed, hasn't he?  if not, what else does blagojevich have to do to make the appointment official?  and when thereafter would burris take office?  immediately?

    • Not sure of the details.

      State law would say what Blago has to do -- most likely just deliver a signed letter to the IL Secretary of State.  He may already have done that.  He also has to be sworn in by the Senate to take office, and that's where the fight may be.

      • Could the Senate...

        ... simply refuse to sit him procedurally?  Could they put his swearing in on the schedule and continually push it off the calender?  I would assume that they could and that it would take the SC to force the issue into compliance as you've outlined above.

        • They could, and they would get sued after about a week.

          That's one way this could be resolved.  It would be ugly, and as I've said, the Senate would likely lose.

          • They don't have to win the case, do they?

            All the Senate needs is to decline to seat Burris and tie up the matter in litigation until the next election for the seat.  That seems achievable even the case is lost in the end.  Of course, that leaves Illinois underrepresented in the meantime.  

      • Yes but

        The Illinois Sect'y of State has refused to certify the letter.

        sabutai   @   Tue 4 Dec 7:00 PM
    • he's not certified

      and the sec of state has said he won't certify it unless he's legally compelled to do so (ie he's going to court).  

  4. Expulsion

    The Senate can expel him. A two-thirds vote is required, but maybe a few Republicans would go along.

    TedF

    • on what grounds?

      they do need grounds, don't they?

      • I don't think so

        The Constitution doesn't say so. Contrast that with the impeachment provisions, which permit impeachment only for "high crimes and misdemeanors." And even in case of impeachment, I think that an impeachment would not be reviewable in court.

        TedF

        • even if that is true,

          what are the odds they would spend time on ejecting a qualified senator when other little items nag, like the economy and civil equality for americans, for example.  i think it highly unlikely.  then again, as i've said, i think reid is an idiot.

          • i believe

            reid has said that the Senate would eject him if they're compelled to allow him in the senate to begin with. pretty sure I read a quote with reid saying that on dkos.  

        • Right, as far as I know.

          Expulsion is not reviewable.  However, I think it extraordinarily unlikely that they will expel him.  Frankly, if I were a Senator, I would vote against expulsion.  Burris hasn't done anything wrong, and expelling him from the Senate seems pretty odious to me.

          • Why?

            I'm not sure I see that expulsion is more odious than refusal to seat him. In the circumstances, I wouldn't regard expulsion as a statement about Burris.

            That said, I think the Senate might well expel him for poor taste. The Burris monument confirms, I think, the notion that Burris is a narcissist, which occurred to me when I learned that he had accepted the governor's appointment.

            TedF

          • he donated $14k to blogo

            who knows what else has gone on there.

            there's enough doubt to cast him out. I don't think it's a slam dunk that he'd get expelled, if he even gets in there (and I still think that's doubtful), but there's a very good chance that he will. The dems want to look squeaky clean... they don't want blogo's guy in there... scandals are a big reason why the Republicans were thrown out of power, we don't need these scandals just as we're getting into power.  

            • Guilt by association and speculation, Ryan?

              If the donations were illegal, that's one thing. If Buriss himself has committed no crime, however, why advocate a harsher fate for him than you propose for Sal DiMasi? I agree with David that the best solution would have been a special election, but since that ship has sailed Buriss should serve. It's really funny to hear you advancing the "Who knows what else has gone on there..." insinuation as a justification for the rather drastic step of senatorial expulsion, given your vigorous support of DiMasi.

          • Actually, if I were voting, I'd vote to expel him.

            Burris made himself fair game by accepting Blago's offer.  If he had any judgment  at all he would have distanced himself from this debacle until the dust settled.  Indeed, he should have turned it down like Danny Davis allegedly did.  

            Because the appointment is clearly tainted, I would argue Burris did do something wrong by accepting it.  That, in my view, is justification for denying him the seat by expulsion.  

            That said, I don't think the Senate will do that.  Burris is in.  Gaaah.  He'll have to put an addition on his monument after this.  

      • Any grounds they want

      • no, they don't

        neat thing that constitution is, sometimes. the 2/3s thing makes sure it's not abused.  

  5. Spot on, David n/t

  6. Who squawked when Nixon appointed Ford as VP

    just months before he would have been impeached? Is this any different, really?

  7. Delay is the Name of the Game

    You are right that there are no good options here, and I share your frustration over the state legislature's failure to change the law to allow for a special election.

    Still, I'm not sure if Reid and the Dem caucus could have handled this much differently. It certainly does not appear that the Senate has the constitutional power to exclude Burris, but they had to take a stand against Blagojevich here, making it clear how they felt about his power to appoint. It allowed them to distance themselves from the Governor, which was the right thing to do.

    What I would do is stand my ground -- refuse to seat Burris and invite a lawsuit. It will likely take a few months to settle this, by which time Blago very well might be impeached. By refusing to seat Burris, they do what in my mind is the right thing to do -- refuse to seat one of Blago's cronies (and yes, I call Burris a "crony" for the simple reason that he accepted the corrupt Gov.'s appointment, which he should have refused). This will make it clear to the people of Illinois (and indeed all Americans) that Democrats will not tolerate cronyism. It also undercuts Burris's base should he try and run in 2010 against a better Dem. It may even compel Burris to pull himself from consideration, especially if the Lt. Gov. takes over and wants to designate someone else.

    The political negatives of this strategy are clear -- you lose a Democratic Senator during a key period for Obama, and you drag this thing out a while longer. Nevertheless, (and especially with Franken's likely victory), I think the Dems can still pass plenty of important legislation even with this distraction. And they take the high road, not allowing Blago to win this round.

    • Hoya - why would a delay negate the appointment of a Gov. who was entitled to make the appointment befoe his impeachment?

      • It won't negate the appointment...

        ...but it will undercut Burris, particularly if Blago is ultimately impeached before Burris is seated. This might lead Burris to remove himself from consideration (particularly if the Lt. Gov. signals that she wants someone else), or at least send a strong signal to him that the Dems won't back him in 2010 (they will fund a primary challenge).

        • Dem versus Dem over the ethical high ground

          as Bush and Cheney (and Fitzgerald-indicted Scooter Libby-  remember him?) skulk off to live out the rest of their lives in unmolested luxury. The "all-time winners" of Jethro Tull lore, they've still got us all by the balls.    

  8. Gotcha! Blago Wins Round One!

    Just seat Burris and let hem be beaten in two years.  

    The press conference annnouncement by Blago was a circus.  Bobby "Obama's an educated fool" Rush was pathetic.

    No one should spend anytime dignifying Blago's action and Rush's performance.

    I didn't know whether to laugh or cry!

    • Laugh! A deep, hearty laugh!

      One senator is only 1% of the whole.  This is a body that holds less than 20% of taxpayer respect. I wonder why?

      Nevada's Harry Reid leads the charge against Blagojevich/Burris.  Yeah, the same Reid famous for getting bankers' campaign contributions, pressing the Native Americans for contributions via Abramoff.  Now holier than thou.  (I must admit, I'm amazed that politicians can keep their composure as they come out with the most outrageous things.Not a hint of a laugh.  Amazing.)  

      The US Attorney now wants a three month delay (what lawyer doesn't want a delay!) to put forth his grand jury testimony that was iron-clad just a couple weeks ago. "New evidence!"  Sure, what was wrong with the evidence he had?

      People are being played for saps again.  An Illinois power struggle is going on.  Maybe the Governor wasn't doing his duty to the party.  Maybe the party is in rebellion.  Whatever the situation, the press is being used to put forth this struggle or a couple year appointment.

      Government by Hollywood.

  9. Can't IL just schedule a special election ASAP?

    Is there a reason that they would have to wait for two years?

  10. Ironic...Senate Dems need conservative Supreme Court to $quot;interpret$quot; Constitution...

    As someone who views the Constitution as a "living, breathing" document, the provisions of Article 1, Sec 5 that give the Senate control over the "elections, returns" of US Senators can REASONABLY be interpreted to apply to the "appointment" of a Senator.

    All we need is for the so-called "strict constructionist" of Scalia, Roberts and all to rule in an interpretive manner.  When it comes to sitting a Dem Senator, they'll show their political under belly, just like they did with Gore v Bush.  

  11. Ahhhhhh yes-----the democratic leadership we have all been breathlessly expecting.

    Change you can count on. What's next? The next presidential administration is taking on all the appearances of The Greatest Show on Earth. A three ring circus! Yes sportsfans, we are T minus 20 and counting.  

  12. What about the whole 'Rahm pressuring him$quot; angle?

    Was Obama thinking he could force Blago's hand?  I want to hear those phone calls.  I think there's a good chance Obama emerges as the bad guy here, along with the Washington Democrats, who thought they could force Blago to pick who they wanted him to pick, for nothing but some appreciation.  But just trying to influence him in the slightest seems to me to be fishy, let alone trying to get him impeached if he doesn't go along with them.

  13. Not so fast...

    The Sec of State in Ill. has said he'll try not to certify Blago's pick. He may be compelled to do so, but that's going to take some time. Stalling is winning this game, so long as Ill gets their ass together and ousts Blago.

  14. the burris monument

    can't make this stuff up.

    I'm sorry, David, but no way, no how, can this man be allowed to be appointed to the Senate. There's plenty of avenues that democrats can still take in this process, but if it comes down to it, this is a time for the Senate to interpret the Constitution as it applies to the Senate liberally. He doesn't meet the qualifications, period, and should not be there for more than two minutes... either the senate must refuse to seat him or immediately expel him.  

    • more monuments...

      his kids are named rolanda and roland Jr.

      W h a c k o.

      the comments on this link are hilarious. http://www.politico.com/blogs/...

      • Sorry Ryan,

        but the notion that an outsized ego renders someone not "qualified" for the Senate is, as has been stated elsewhere in this thread, laughable.

        He does meet the "qualifications."  The Dems are just understandably squeamish about having him in office due to the Blagovirus taint.  But honestly -- is it really so much worse than David Vitter or Larry Craig, as to neither of whom expulsion was seriously considered?

        Look.  No one has been expelled from the Senate since the civil war.  The only grounds on which it has ever happened are, essentially, treason (either aiding the British in 1797, or aiding the Confederates).  And the other instances, in which expulsion was considered but either failed or mooted by resignation, all involved the Senator's own serious misconduct.  There's simply nothing like that here, unless Fitzgerald comes up with something linking Burris to Blago's wheeling and dealing.

        • being certified by the sec of state

          is a 'qualification' constitutional or otherwise. you can't serve if your appointment or election isn't certified. Period.

          And this isn't ego we're talking about. This is crazy-level ego. The constitution is ignored daily. I don't think it will come to that, but if it does, Reid can choose to interpret the constitution differently. The country will quite easily support that decision.

          I'm not so tied to honoring traditions of the past, as you are David. The republicans think of the constitution as kindling. I'm not going to freaking bat an eye if Reid refuses to sit Burris, whether you think that violates the constitution or not (and I say not). At the very least, Reid has a duty to this country to test your constitutional theory in court, which I'll be quite happy to see, as those months will be all we need for Blogo to go away, at which point someone else can be appointed.  

          • Well, you haven't really addressed the issues that I raised.

            Like the history of expulsions, or the constitutional definition of "qualifications" (beyond your assertion about the IL SoS certifying the letter, which IMHO is a loser as well -- it's not even clear that the SoS's action is required, and in any event state law is pretty clear that the SoS's certification of the Gov's action is non-discretionary, and most likely the IL Supreme Court will quickly order the SoS to certify the document), or the other gross misconduct by Senators while in office that didn't merit expulsion.  But that's fine, I guess.

            "Crazy-level ego"?  Again, that's a total non-starter.  Do you really want to go down the road of having the Senate refuse to seat someone because they disapprove of his or her personality?  I sure don't.

            I don't see the relevance of whether the GOP sees the Constitution as "kindling."  Unfortunately, this one's all about the Dems, and I think we should hold the Dems to a higher standard than that.

            Reid is certainly within his rights to urge the Senate to refuse to seat Burris based on his interpretation of the Constitution.  My guess is that, if he does so, he will lose an ugly Supreme Court case, but that's how our system works.  I'm unclear on whether, if it comes to that (and Blago is out of office by then), Burris still gets to keep the seat even if in the meantime the IL legislature has passed a new law calling for a special election.  I kinda think not -- if the courts conclude that his appointment was valid, my guess is that he gets to keep the seat 'til 2010.  But I could be wrong -- this isn't an ex post facto situation.

            Finally, your disdain for "honoring traditions of the past" is, I think, a risky road to go down.  Just bear in mind that, sooner or later, the GOP will be back in control of the White House and the Congress.  Take the longer view.  Burris is unlikely to cause any harm in the Senate -- his politics are pretty good, and if he is seated, the 2010 campaign for his seat starts the next day.  He's a minor embarrassment -- but the longer this drags on, the more major the embarrassment becomes (and, not incidentally, the longer the new president is without a possibly crucial Democratic vote).

            • Victory!

              Looks like HR's Kevin and I have won a major victory in getting you to change your tone!

              Compare your earlier statement:

              Because that's what the Constitution says.  I don't mean to be glib about it, but as far as I can tell it really is that simple.

              Now, after Kevin and I objected and attended candlelight vigils and participated in angry rallies across America, we have scored a major victory:

              My guess is that, if he does so, he will lose an ugly Supreme Court case, but that's how our system works.

              What do we win?

              • now you can retire.

                congratulations.

                • Did you get

                  the "we got Rick Warren to change his tone" analogy?  Can't retire, there are still thousands of same-sex couples that need equal protections and federal recognition that no one else cares about.

            • I am taking the longer view

              There isn't a tradition they won't stomp on to get what they want. If there's some lousy traditions, then we should by no means continue them. There's some good ones, and thank goodness for that, but the American people voted for change - and that includes being willing to change our old ways when they just don't make sense in the here and now.

              If the Supreme Court of the United States ordered the Senate to accept Burris, then they should do it. Short of that, Reid and the Democrats should stick to their guns and let this process take its course. I'd be interested to read the case. Certainly, there's enough speculation over what would happen that it warrants one. This whole practice isn't exactly routine.  

  15. Reality check

    The constitutional questions are fascinating, but the idea that Democrats blew it by overreaching and failing to call a special election does not pass muster.

    That procedure would involve a change to state law, and to make that change at some point a bill must end up on the Governor's desk. While it is sitting there that governor has plenty of time to make his tainted appointment.

    If Blago won this round it was not as a result of partisan cupidity.

    • Of course Blago would've vetoed, whereupon

      the lege would have overridden.  If they had any sense.  Which they evidently don't.  Reports today are that, had the lege acted, Blago wouldn't have made the appointment.

      But once it became clear that state lawmakers would not call a special election, Mr. Blagojevich had an emissary make a call on Dec. 24 to Danny K. Davis, a Democratic representative and longtime African-American leader.
      • Truth or spin?

        I see that anonymous "people with knowledge of his [Blago's] thinking" have convinced the Times to publish the idea that in some nebulous way the failure to call a special election led to this appointment.

        I think it is just as likely that had the Legislature gone ahead with the change to a special election that the same "people with knowledge" would be putting about that that was the precipitating event.

        It is impossible for the legislature to outflank the Governor on this because a change on the law would require Blago's signature, veto, or pocket veto, at which point he could jsut make his appointment. The idea that Blagojevich is just doggedly struggling to do the right thing under difficult circumstances is laughable.

  16. What a Bunch of Racist Losers

     Deny a Senate seat to a black man because it wasn't done YOUR way. You folks just don't take being outmanuevered very well do you? Adopting a "wait and see" posture would have worked wonders for you guys. Instead of your usual "ready, fire, aim". But no, you gotta renounce this dirty doubl-dealing corrupt democratic governor. What do you expect? He's a DEMOCRAT! You can't just remake the rules in the middle of a situation. You're going to deny Illinois equal representation under the law because you don't like their governor? Or the pick is black? Or to prove you're the bosses? Pick one, you'll look like fools no matter which choice you make? I don't condone what Blagojevich did. just another corrupt democrat. Granted, on a higher plane. But if this guy beats the rap, you have a mountain of trouble on your hands.  

    • That GOP Hail Mary talking point?

      Watch it being laughed off the planet.

      • Ahh! The G.O.P.

        Grumpy Old People. That's what some local Republicans are refering to their party as. We must remember, I am unenrolled. So Laurel, which part don't you like? Being a racist? Or just being made to look foolish? I hope it is being made to look foolish. I respect you and BMG too much. Yeah, we all know I'm a bigot, time to find a new pigeonhole for me!

    • Look in the mirror

      You're the one bringing race into it.

  17. Akhil Amar says it can be done!

    The fancy-pants lawyers on this thread have mostly said that the Senate lacks the power to refuse to seat Burris. Well, watch out! Here comes Akhil Amar, who opines that the Senate indeed has the power to refuse to seat Burris, on the grounds that the power to judge "returns" includes the power to judge the correctness of an appointment as well as of an election. Amar thinks that the Powell case is no bar, either.

    I don't agree with Amar--I think Powell forecloses this argument. But then again, Amar is about as big a name as there is in the constitutional lawyer buisness.

    TedF

    • Amar is a clever fellow -- maybe too clever.

      I mean, maybe he's right -- this is uncharted territory.  But there's a good chance the Supreme Court wouldn't go for it.  This, for example,

      According to the Oxford English Dictionary, a "Return" in the time of the framers involved a report of an appointment made by a sheriff or other official. If the Senate may refuse to seat a person picked in a corrupt election, it likewise may refuse to seat a person picked in a corrupt appointment process.

      simply begs the question.  Even if Amar is right that to "judge" the "return" means to consider whether the "appointment made by a sheriff or other official" is valid, why wouldn't Powell pretty much say that, as with "qualifications," Congress's role in judging "returns" is limited to the face of the document, and does not authorize a wide-ranging inquiry into whether the election/appointment/whatever meets with the approval of 51 members of the Senate?

      I really think this is a terribly dangerous road to go down.  Looks at Coleman/Franken.  Let's say, when the process is finally played out, the MN courts decide that Coleman has won by 38 votes.  Is the Democratic majority of the US Senate going to second-guess that determination, conduct their own kangaroo court hearings, and decide that Franken should have the seat instead?  That's an invitation to chaos -- and once that Pandora's box is opened, it can never be closed.  Imagine, for example, the shenanigans that would ensue if control of the Senate turned on Coleman/Franken.

      I stand by my original assessment.  Seat Burris and be done with it.  The other options all suck.

      Also, lots of blawgers are not buying the Amar/Chafetz argument.  Links here, here, and here, to get you started.

      • Regarding Coleman/Franken

        One could imagine the Senate deciding that the result is well within the margin of error, and therefore that neither candidate won. They could then refuse to seat either until there is new election. Of course, we all know that is not going to happen, but it would seem to be in the spirit of their authority to judge elections.

        • And yet,

          surely that would be an unacceptable outcome, don't you think?

          • Actually, I think it would be a good outcome

            While I want to see Franken win, I hate seeing election results that are essentially random. There are always going to be some measurement errors in an election, and when things are this close there is no way we can be sure that the winner actually received the most votes. Flipping a coin is probably as fair as this excruciating recount process.

            • Isn't the question of how...

              ... election results should be handled when within the margin of error a question for State law and not Federal legislators?  

              • Yes and no

                It is not a question of either/or. The Constitution explicitly grants the Senate the power to judge elections, but that doesn't mean that the State does not get the first shot at it.

                • If the answer is 'yes and no'....

                  ... this only serves to illustrate a possible separation of elections powers conflict.  Any illustrated conflict, when brought to court, would get cleared up I assume.  It's awfully hard to imagine a court 'clearing it up' without upholding at least some power by the State in the matter of its own elections and by extension, limiting the extent to which the Senate's Constitutional "power to judge elections".  As such, I think it's a mistake to think that the Senate could get away with reinterpreting the actual numbers behind the election result or bypassing State legal mechanisms on how to deal with a close election.  I simply don't see a court giving the Senate such an ad-hoc ability to challenge settled and Constitutional State law.  The only way around it would be to federalize all national elections, at which point we are talking about a legal change, not a legal interpretation,... and that's a whole other kettle of fish anyway.

                  I'm no Lawyer, but that'd be my guess.

            • $quot;Flipping a coin$quot;

              That, in fact, is an option under MN law, believe it or not.  That may ultimately determine who gets the seat.

              More generally, though, the notion that the Senate could reject a race because it was too close strikes me as bonkers.  All that would do is reward the candidate who happened to have more money in the bank post-election, because turnout would determine the do-over.  Further, it's completely inappropriate for federal authorities to inject themselves into state processes like that -- it's almost guaranteed to lead to bad results (exhibit A).

              • Why is it $quot;bonkers?$quot;

                OK, politically speaking it is bonkers, especially since there is no precedent for it that I am aware of.

                But conceptually, I don't see any problem with it. To me it seems like it would be fairer to have another election than to choose the winner via some arbitrary means, even if it is done under the pretense that all votes are being counted accurately when we know they are not. The people who vote in the second election will have had more time to reflect on their choice and there would presumable be fewer arbitrary votes since there would be no other races on the ticket.

      • I think there are other options

        It seems that there is still room for leaders in the Senate and the IL State House to attempt to pressure Burris into refusing the appointment. For instance, if Burris knew that a special election would be held in the Spring he might be less interested in keeping the seat warm for a couple of months. In fact, this whole business of refusing to seat can be considered as a bluff to get Burris to back out. At least it is worth a try, but given what has come out about his unusual degree of narcissism (even for a politician), it does not seem very likely to succeed.

      • About Coleman/Franken...

        Right here in MA, we had an election with an 11 vote margin.  During the mandatory recount, it was determined in several precincts in the district that the WRONG BALLOTS with the race left off were delived by town hall to the polling places.  A Superior Court judge ordered a new election.  The MA Legislature responded by immediately voting to seat the Democrat in defiance of the court order.

        And the Democrat is still there to this day....

  18. constitutional way through

    David, looks as though this can be done to your standards after all.

    http://www.dailykos.com/storyo...

    Yale's Prof. Akhil Reed Amar and Cornell's Prof. Josh Chafetz say it goes like this:

      1. Art. I, sec. 5 says, "Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members."

      2. What's a "Return?"

       According to the Oxford English Dictionary, a "Return" in the time of the framers involved a report of an appointment made by a sheriff or other official.

      3. Powell v. McCormack said the House (and presumably the Senate as well) couldn't impose new qualifications beyond those set forth in the Constitution -- age, citizenship, residency. But it didn't say the Senate (or House) couldn't judge the "returns." (There wouldn't be any in the House, anyway, since nobody's ever appointed to the House).

      4. If Blagojevich's appointment documentation is a "return," then the Senate can "judge" it. And reject it.

    • As near as I recall

      Returns meant the counting of the ballots cast in an election. But I can be corrected.

      • Wow, what a memory.

        You recall the "time of the framers"? I didn't think you were that old.

        According to the Oxford English Dictionary, a "Return" in the time of the framers involved a report of an appointment made by a sheriff or other official.
        • I hope that's not your best shot

           Yes, "ism" can only be brought into a discussion when it is beneficial to the democrats. Want to try Social Darwinism? Dems don't like to discuss that. It's your dirty little secret. Dump on the segment of the population that can't fight. Wow, you guys are tough!

    • See my response upthread

      here.

      • Thank You David

         Good explanation, especially in relation to the MN election. I agree with seating Burris and being done with the sordid mess. As much as I dislike the democratic party, it doesn't deserve this mess.

  19. Update -- law profs dump on Amar

    Lots of blawgers are not buying the Amar/Chafetz argument.  Links here, here, and here, to get you started.

  20. I've commented on Amar before in the NPV context

    But I think the same comment could apply here. He's unquestionably a brilliant constitutional scholar, but from what I've read of his work, he seems like he exemplifies academic ivory tower thinking. Very theoretical, intellectual, and well- reasoned, but not always the type of thing that goes over well with pragmatic real world judges who are listening to two real world litigants arguing a real world case.

    On the larger point I think David is right, it seems unlikely to me that there's any constitutional mechanism that would allow the US Senate to prevent Harris from joining it's ranks. The only way would be for IL to change it's law (either after Gov. Blagojevich is gone or over his veto) to require an election within x days to fill the seat, with the appointee sitting in the interim.    

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