The Congressional Research Service Says the Senate Can Exclude Burris

Jane (here, here, and here) and bmaz (here, here, and here) have been diligently chronicling the continuing saga of seating Roland Burris. In the last week, we’ve seen Reid and Durbin scream Go! Stop! Go! at Burris.

But it turns out, since last Monday, they’ve had a Congressional Research Service study explaining whether or not they have to seat Burris, one they seem to have lost in all the excitement. It gives a basis I’ve not heard yet on which to exclude Burris (no link yet). 

Under the Powell decision and rationale, and under the express constitutional grant of authority, the Senate (and House) may, in addition to examining “qualifications” of Members-elect, examine the “elections” and “returns” of their own Members, that is, whether an individual presenting valid credentials has been “duly” chosen. A few years after the Powell decision, the Supreme Court in Roudebush v. Hartke, 405 U.S. 15 (1972), clearly affirmed the right of the Senate to make the final and conclusive determination concerning the election process and seating of its own Members.


Additionally, the Senate has from time-to-time examined the election or selection process (prior to the adoption of the Seventeenth Amendment in 1913, Senators were selected by state legislatures) to see if corruption or bribery has so tainted the process as to call into question its validity.

All that says, really, is to look beyond just Powell to Roudebush as well to see whether or not the Senate can exclude Burris if it wants (bmaz assures me he will look up Roudebush once he gets done with his actual lawyering today).  And that corruption or bribery is fair game.

That said, even with Burris’ admission that he talked to Lon Monk about the seat, the way in which Blago’s defense-or-maybe-not lawyer Sam Adam Jr. brokered the appointment, and other dubious ties between Burris and Blago, it’s not clear that Congress yet has a clear case that Burris’ appointment–as distinct from Blago’s earlier attempts to sell the seat–involved bribery or any corruption outside the norm in Chicago politics. 

Update: Lawrence Tribe weighs in on the "they can exclude Burris" side. Note, this appears to have been published before Obama said he was staying out of this. 

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

  1. sagesse says:

    The longer the Senate is down two Senators (Burris and Franken), the more right-tilting and conservative voting will be, the more compromising that can occur, etc. That suits Harry Reid just fine. Just saw that Franken is not going to have a signed pass/”recommend” from Minnesota anytime soon.

  2. tanbark says:

    ‘Wheel, they don’t need to indict Burris. Nor, even to directly tar him with deal-making. I think the combination of Burris’s original opinion of Blago’s being unfit to stay in office, with his unspinnable willingness to sell that, in exchange for the seat, is enough to make him unfit to be seated.

    Of course, the fact that Burris is parsing words about “no contact with Blago’s representative” while he was telling Monk, Blago’s former Chief of Staff, that he wanted the seat, doesn’t help. Neither does his lying about not saying that Blago was incapacitated.

    I will freely concede that the Senate dems desire to keep him out has more to do with the fact that they don’t want to have him sitting in the Senate when Blago goes down, than it does with Blago’s qualifications, but the truth, to anyone honest enough to admit it, is that Blago picked him for just that reason, and not for any statesmanlike qualifications that he had. He’s using Burris like a club, to try to punish the dems for coming after him for the seat auction he was running.

    And the closer we get to Blago’s removal, the less pressure there will be on the dems to seat him. And there has been not one word spoken as to how the Senate dems using procedural rules to keep Burris at arm’s length for a few weeks while this plays out, is going to threaten our legislative system.

  3. readerOfTeaLeaves says:

    Okay, this resonates with something that I’d understood. The Senate doesn’t simply have to take anyone who shows up on their doorstep; even up through the 1880s and 1890s, before the telegraph, Congress risked some anyoldjoe showing up to claim the right to be seated, and I understood that there was some way for the Senate to referee these claims.

    In the case of Burris, he’s asking them to prove a negation.
    The Senate leadership should ask why it is they’re supposed to seat a shadow, or a photographic negative, since that’s what he’s become.

  4. tanbark says:

    The Senate has a better margin for keeping it from tilting rightward than at any time in the past 8 years. There’s also an incoming democratic president, who, despite some of his worrisome “centrist” appointments, is still a democrat.

    The numbers argument for Burris is mighty thin gruel.

    • FormerFed says:

      Maybe, maybe not. The apportionment of committee seats depends on the final number of Ds vs Rs. I think that right now the Judiciary Committee is 10/9 and may/probably will change on the new apportionment. If the Ds are short two seats, it is going to matter – maybe not much, but it might make a difference.

    • brantl says:

      That depends on what you want to get passed, not what you want to get stopped. As Bush has evidenced, a president can stop a lot from getting passed, but he’s hog-tied to get it passed if he just doesn’t have the filibuster-proof majority.

      If you need stuff passed, having the cloture override number is essential. If you think the Republicans won’t stop votes for cloture, what have they done for the last 2 years? (In record numbers, I might add.)

  5. phred says:

    Seems to me that allowing for bribery or corruption within the norm of Chicago politics is essentially giving a free-pass to seats obtained through bribery and corruption.

    While I would not challenge bmaz’ constitutional interpretation of things, and while I fervently believe each state has a right to determine who represents them in the US Congress, it still seems to me that there ought to be a way to prevent a transparently corrupt appointment (which may or may not be the case here) from claiming a seat.

    • selise says:

      oh, hell i’m willing to challenge anyone. *g*

      nothing i’ve read from bmaz or anyone else has convinced me that it is clearly illegal or unconstitutional for the senate to consider the likelihood the process itself has been tainted. but then, i’m not a lawyer.

      i think what has been confusing the issue is that reid is jackass who so clearly doesn’t care about the law, the constitution, the voters or probably anything of the other stuff we consider important. but that doesn’t mean that blago and burris are in the right or should get a pass. i’m all for challenging burris’ appointment – so long as it can be done without breaking any laws, etc.

      • phred says:

        Oh, I’m just trying to go easy on bmaz today — the Cards won over the weekend and he isn’t taking it well ; )

        I think you make an excellent point. That if the process has been tainted, it should be possible to prevent the appointment from going through. My preference (for whatever that is worth) would be for that action to be taken by the state, rather than the federal Senate. I do worry that one could find one on a slippery slope if the Senate decides who it will and will not accept as a member. Still, even that process could probably be defined in a narrow way so as to limit abuse.

        Like you, I am not a lawyer, but it galls me no end, that in principle a corrupt governor could make a corrupt appointment in broad daylight, and everyone stands around shrugging their shoulders claiming there is nothing to be done about it. We already have a bought and paid for Congress. We could easily find ourselves in a situation where they don’t even attempt to hide it when the transactions become public, just because there are no formal mechanisms in place to stop it.

        Just for the record, I’m not so keen on the whole Caroline Kennedy thing either. But in that case there is no claim of corruption, just politics as usual. Blech.

        • selise says:

          yikes, didn’t know about the cards thing or how bmaz would be affected by it. sorry (((bmaz)))!

          if the process has been tainted, it should be possible to prevent the appointment from going through.

          i wasn’t going quite that far – only that it should be possible to review and consider it (for example via the rules committee). but otherwise, that’s exactly it – my issue has been primarily that the process has been tainted, not that there is some problem inherent to burris.

          it galls me no end, that in principle a corrupt governor could make a corrupt appointment in broad daylight, and everyone stands around shrugging their shoulders claiming there is nothing to be done about it.

          or worse defends it. even if there is nothing legit for the senate to do, we can point out all the different ways this stinks (and not just the ones in the senate) as we do re princess caroline or holder.

          well, at least the state legislature is moving quickly to impeach blago. so at least there is someone taking constructive action.

          • FormerFed says:

            already impeached, now they have the trial in the senate, which may take some time – till convicted, Blago is still the gov, with all rights, etc of the office

        • bobschacht says:

          Oh, I’m just trying to go easy on bmaz today — the Cards won over the weekend and he isn’t taking it well ; )

          Yeah; I think he is still convinced that the Cards will find a way to lose the game. What have they done? Locked up the Bidwell family in an undisclosed location?

          The whole Blago/Burris thing is such an embarrassment to the Democratic Party. Is it true that Democrats (or at least, their leadership) have no principles?

          Bob in HI

          • phred says:

            Bob, glad you at least were pleasantly surprised by the Cards ; )

            As for principled Democrats… that would be an oxymoron at the moment. Perhaps one day, that will no longer be the case. That’s my hope for change anyway ; )

          • freepatriot says:

            Cardinals Derangement Syndrome could happen to you

            please help us find a cure …

            for as little as $5000 a day, you could provide counseling to a poor deranged life long Cards fan (or an unwilling recent convert like bmaz) CDS is responsible for so many tragic predictions and unintelligible rantings that waste hundreds if not thousands of pixels. please help us find a cure, or take the keyboards away from these delusional fools er, tragic victims. Just give us a few thousand dollars a day, and we promise to end the suffering (of the people who have to read this stuff) the choice is yours. please don’t let bmaz’ readers suffer any more

          • LabDancer says:

            “Is it true that Democrats (or at least, their leadership) have no principles?”

            Okay: What have you done with the real bobschact, the one who’s been coming here through the Pelosi-Reid years?

            • freepatriot says:

              “Is it true that Democrats (or at least, their leadership) have no principles?”

              did he just make reference to Democratic LEADERSHIP ???

              this is the worst alien abduction job I ever saw (shakes head)

              get BACK in yer pod an give us our bobschacht back

              Democratic Leadership ???

              ever get the idea that the aliens ain’t even trying to come up with plausible lies anymore ???

            • bobschacht says:

              Okay: What have you done with the real bobschact, the one who’s been coming here through the Pelosi-Reid years?

              heh. Well, there was the bobschacht who was elated during the Watergate hearings with the courage and fortitude of Archie Cox and Leon Jaworski, Elliot Richardson and William Ruckelshaus, and Deep Throat, and… Oh, wait. Those were all *Republicans!* (I didn’t think about that much at the time.)

              But there also was Barbara Jordan. Oh, there was Barbara Jordan! Now there was a Democrat with principles. And there was Sam Ervin, the folksy but fair chair of the Select Committee. The bobschacht who experienced those years was elated with the triumph of principled democracy and our Constitution over the imperial presidency. He was an optimist. He also surfaced during the all-to-brief campaign of Howard Dean for President. That bobschacht still hangs around, mostly moping at the present disgraceful state of affairs, and hiding in a corner somewhere, although he is trying to be hopeful about PEBO.

              The other bobschacht discovered FireDogLake just in time for the trial of Scooter Libby, and Speaker Pelosi’s disgraceful removal of impeachment from the Table of Justice. The fecklessness of Speaker Pelosi and the Democratic leadership have turned that bobschacht into a cynic who gets to be right a lot, but is not enjoying politics so much. He is worried about the America that the next generation will inherit from us. He is thinking about grandkids RJ, Rori, Hailey, Kyle, Valerie, and Maisie, grandnieces Maddie, Kayley, Noelle and Fiona, and grandnephew Wade. He is worried by what he remembers of George Orwell’s “1984″, Aldous Huxley’s “Brave New World,” which seem to be unfolding before his eyes, and the Cassandra-like warnings of the two Naomis, not to mention the nest of ticking time bombs the Bush maladministration has left for PEBO. That’s the bobschacht that can usually be found at the Lake.

              Bob in HI

              • readerOfTeaLeaves says:

                Well, since you mention Wm Ruckelshaus, the original EPA administrator, ‘moderate Republican’, and later a corporate atty in Seattle, this item about his 2008 support for Obama might interest you:

                I remember Ruckelshaus honored a few years back for a regional environmental award. Obviously, the people who gave it out thought he deserved it — and since Microsoft, Adobe, etc, etc were all underwriting the event (along with Preston Gates & Ellis), it was well attended.

                Wonderful comment at 64.
                Including the comment about the appalling consequences of ‘taking impeachment off the table’.

  6. Mary says:

    Did the CRS report have the IL Sup Ct ruling on the finality and validity of the appointment?

    The Hartke case (I’ll call it that, instead of Roudebush, since as a young kid I did the handshake thing with Vance Hartke) was a recount case, that pretty much says in a contested recount situation, the Senate has the ultimate authority in deciding who to seat. I’d say it’s a stretch to formulate that case as impacting whether or not the Senate can impose a qualification of purity on a Governor making an appointment that has not only not been contested at the state level, but has been certified by the IL Sup Ct as a valid exercise.

    There’s no “competing claim” for the Senate to consider here; just whether or not they dislike Blagojevich so much that they won’t seat his nominee. I’d say that’s a lot closer to adding a qualification (Powell) than to deciding who to seat in a contested recount (Hartke)

    But I’m not vested either way.

    War crimes – there I’m vested.

  7. Mary says:

    5 Seems to me that allowing for bribery or corruption within the norm of Chicago politics is essentially giving a free-pass to seats obtained through bribery and corruption

    I think that if there was an entity with standing (like the State AG or the State Legislature) contesting the appoinment in IL, by making credible claims that Blagojevich had accepted, or Burris had given, items of value for the appointment, you’d have something. That would go to the ACTUAL return before the Senate. I don’t see where any entity with standing has alleged that Burris obtained his appointment “through bribery and corruption” Maybe after the hearings, the IL legislature will do that, but right now you have an appointment that isn’t tainted by any allegations involving the appointment, but rather by a Governor who is tainted by other allegations and an appointment that no body or challenger in IL is contesting as far as I can tell.

    • selise says:

      not exactly on point – but does it matter than blago has been impeached for abuse of power in plotting to obtain some personal benefit in exchange for the senate appoinment?

    • phred says:

      That’s a good point Mary. Do you think no one is challenging Burris appointment because they are so focussed on ousting Blago they can’t do both at the same time or because there is no evidence that Burris paid for his seat in some way?

      IIRC, the whole reason Fitz made his announcement when he did was to pre-empt a corrupt appointment, and I thought the haste in impeaching Blago in IL was driven by a desire to limit his ability to fill both Obama’s and Rahm’s seats in a corrupt fashion.

      If it can be shown that Burris’ appointment was on the up-and-up, then why the rush to impeach?

      • Nell says:

        driven by a desire to limit [Blago’s] ability to fill both Obama’s and Rahm’s seats in a corrupt fashion.

        Blagojevich had and has no power to fill Rahm’s seat in any fashion, corrupt or not. House vacancies are filled by special election. The election for IL-5 will be held on April 9, with party primaries March 3. There are a number of Democratic candidates, of whom the most outstanding by far is labor lawyer Tom Geohegan.

        Geohegan, not so coincidentally, had an op-ed in the NY Times on the day he announced his candidacy on the wrongness of having governors appoint replacements for Senate vacancies.

  8. tanbark says:

    Phred, there is. :o)

    All the Senate dems have to do is put Burris in the Senate Rules Committee cloakroom for a few weeks, while the Illinois legislature moves on Blago.

    If Blago’s appointee isn’t in that seat when Blago is forced from office for various attempts to peddle it to the highest bidder, then he won’t ever sit in it.

    The operatic howls of the “legalist” chorus will be reduced to whispers.

    Oh. The new gov will be able to appoint someone whose skin-pores have
    been vetted for being clean, AND the repubs won’t have Burris to point to as Fitz’s Grand Steinway piano lands on Blago’s head.

    What a terrible, unconstitutional, outcome. :o)

  9. runfastandwin says:

    Of course they CAN exclude him if they want to, the question is really SHOULD they? And I think no, it’s a needless distraction form the business at hand. He won’t win in 2010 anyway so why worry about it so much?

    • readerOfTeaLeaves says:

      They should exclude him because of the problems that problems with political legitimacy have presented in American government the past 8 years, and even longer.

      In 2000, Bush claimed the Presidency with fewer votes, but a SCOTUS decision.
      In 2004, Bush claimed the Presidency with… almost certainly hacked servers (at the very least, in Ohio), in large part because the weenie Kerry/Edwards campaign (abetted by Shrum) didn’t ‘go to the mat’ and force the GOP bullies (Bush, Cheney, Rove, et al) to prove that they legitimately won.

      In other words, the Dems didn’t fight the corruption that was smirking them in the face.
      Seating Burris is not ‘change’; it’s the same old corrupt gutlessness that led to the disasters we now have to solve.

  10. Nell says:

    OT: on Attorney General nominations. Comments are closed on bmaz’s post on Holder and the FALN pardon below, so a thought here.

    I was astonished at the number of commenters who wanted to see or wondered why Alberto Mora was not considered for the AG nomination.

    Short answer: because he is an extremely conservative Republican.

    I have nothing but admiration for Alberto Mora’s honorable and courageous actions as Navy general counsel, and for his continued willingness to stand up for fundamental moral values on the subject of torture and cruelty to prisoners.

    But on just about any other policy issue with which the Department of Justice deals, most commenters here would find themselves in strong disagreement with Mora. He is currently working as a senior attorney for Wal-Mart, a job that fits with his views on labor unions.

    I went to school with him. I liked him personally; we were part of the same circle of friends. But we were politically at opposite poles, and we have grown no closer in that regard over the years. Alberto Mora could not possibly be an Attorney General for any Democratic administration.

    Restoring integrity to the Department of Justice is a big priority. I don’t think Eric Holder is the best possible candidate for that job. But Alberto Mora is not even a remotely conceivable candidate for that job.

  11. Mary says:

    15/17 – I’m guessing that the lack of info on the Blago/Burris contacts is why no one made a challenge on the appointment at the State level, but I have a hard time understanding what there is for the Senate to “judge” when there’s no challenge. OTOH, I thought the hearing was a good step and if IL wants to go there, then maybe the Legislature will do that. I think that the Fed prosecutor in IL, as with most of us, probably had a hard time believing that after he exposed what he did, anyone would accept an appointment from Blagojevich. Burris is a strange duck on that front.

    20 – Not so much AG (although even there, someone who believes in prosecutions of war crimes is, conservative Republican or not, IMO much better than someone who wants to look forward and get cozy), but for Counsel for the DOD, I still think Mora would have been a great pick, but then again, I’m not really all that keen on identification as a Democrat these days. The reason I think Mora would have been a great pick at DOD is pretty much laid out here:

    Mora attended a meeting in Rumsfeld’s private conference room at the Pentagon, called by Gordon England, the Deputy Defense Secretary, to discuss a proposed new directive defining the military’s detention policy. The civilian Secretaries of the Army, the Air Force, and the Navy were present, along with the highest-ranking officers of each service, and some half-dozen military lawyers. Matthew Waxman, the deputy assistant secretary of defense for detainee affairs, had proposed making it official Pentagon policy to treat detainees in accordance with Common Article Three of the Geneva conventions, which bars cruel, inhumane, and degrading treatment, as well as outrages against human dignity. …

    This standard had been in effect for fifty years, and all members of the U.S. armed services were trained to follow it. One by one, the military officers argued for returning the U.S. to what they called the high ground. But two people opposed it. One was Stephen Cambone, the under-secretary of defense for intelligence; the other was Haynes. They argued that the articulated standard would limit America’s “flexibility.” It also might expose Administration officials to charges of war crimes: if Common Article Three became the standard for treatment, then it might become a crime to violate it. …

    In exasperation, according to another participant, Mora said that whether the Pentagon enshrined it as official policy or not, the Geneva conventions were already written into both U.S. and international law. Any grave breach of them, at home or abroad, was classified as a war crime. To emphasize his position, he took out a copy of the text of U.S. Code 18.2441, the War Crimes Act, which forbids the violation of Common Article Three, and read from it. The point, Mora told me, was that “it’s a statute. It exists—we’re not free to disregard it. We’re bound by it. It’s been adopted by the Congress. And we’re not the only interpreters of it. Other nations could have U.S. officials arrested.”

    emph added

    I’ve yet to see anything so clear and so evocative of leadership from the Dem lawyers like Sunstein and Holder and even Tribe et al. Ask me to care about how someone personally feels about Unions AFTER the United States is no longer a state sponsor of torture and is prosecuting war criminals, under the leadership of a man who, whether he likes them or not, will follow the laws Congress passes and believes that the DOJ is not free to simply disregard them. Once we hit that goal, then I’ll be fine with a limp willed, war crimes appeasing, “librul Democrat”

    • Nell says:

      Mary, there is no commenter at EW whose contributions I value more than yours. I, too, am at one of the lower ebbs in my life wrt enthusiasm for the Democratic party.

      The passage you quote from Jane Mayer’s article brought me to tears when I read it three years ago. I was profoundly grateful for Alberto’s courage and humbled by the recognition that that commitment to the rule of law — and to the fundamental values that it represents — united us despite our very different views on social and political issues.

      I despise and scorn the “liberal” hacks like Cass Sunstein who characterize holding accountable the officials who instituted a policy of torture as “criminalizing policy differences.” The proper response to them is the one Mora gave: the issue of torture was not a policy dispute because it was already a crime.

      But just as I am not willing to trade off accountability for torture for restoration of full functioning to the civil rights division, independence and integrity to the U.S. Attorneys’ offices, fairness to the immigration panels, etc., I would be equally unwiling to subordinate the rights of women, minorities, immigrants, workers, and consumers to corporate rule and conservative social doctrine as the price for accountability for executive crimes.

      It’s not an either/or, however much the Democratic hacks and other opponents of prosecution (including Jack Balkin) might want us to believe. There is no reason on earth we can’t have accountability and progressive policy. We have to demand both.

      • skdadl says:

        It’s not an either/or, however much the Democratic hacks and other opponents of prosecution (including Jack Balkin) might want us to believe. There is no reason on earth we can’t have accountability and progressive policy. We have to demand both.

        Let it be, let it be, let it be, oh let it be … (Excuse me: I’m just sitting here humming along to myself.)

        Mary, I hear you, but haven’t we also learned over these last few years that what Neil says is right? Haven’t we watched all sorts of smart young conservative lawyers who are principled on some turfs but suddenly political hacks on others?

        Lindsey Graham has held a strong and principled position against torture, eg. He’s a former JAG, and that surfaces when it needs to in the SJC (did you see him take Thomas Hartmann apart?), which is nothing but a good thing. But still. I mean. How far do you want to run on that and nothing else?

        • Petrocelli says:

          Hiya Fellow Northerner !

          It seems the migratory birds will be in Arizona by Sunday … namely Eagles & Cadinals … *g*

          • skdadl says:

            This is an interesting language that you speak. Can you take me to your leader? *wink*

            Och, Petro. I am feeling so bad about us. We are the last loyal Bushies left in the world. I have never seen politics so low in my country as they are now, with no alternative in sight. I am very close to despair. I would migrate to Iceland, except I understand that they had a sudden financial meltdown, and I have these cats …

          • freepatriot says:

            It seems the migratory birds will be in Arizona by Sunday … namely Eagles & Cardinals

            only one of em gets to keep migrating

            the other one gets to slink away (or endure one LOOOOOOOOOOONG plane ride to Philly)

  12. Slothrop says:

    I wonder how different the U.S. Senate would be if everyone in it had been placed there as the result of bribes, fake “loans,” or questionable campaign “contributions.”

    I mean, how different would it be?

    • freepatriot says:

      how different would it be?

      well, it would be decorated a little different …

      (for an idea of how different, think” Pimp my ride” meets Hooters on steroids)

  13. JohnLopresti says:

    OT, Thx, Nell, for stating an important, long evident potential drawback to a retrogressive alternative to EHolder’s readiness for the game of AG.

    Somewhat ontopic, JackBalkin had a thoughtful, expansive post a few days before Lawrence Tribe’s one paragraph rejoinder ex tempore in Forbes January 2.

    The IL SupCt. January 9 2009 let the US Senate be the final decisionmaker, unless ReidCo wishes to take it to Scotus.

    Mark Tushnet and some other folks tossed rebuttals around balkinization, as well. I recall well the storm of pork complaints around Adam Clayton Powell, NYC politics having rhythmical tides high and low on the far side of the Meadowlands where I learned what was called forensic debate, losing handily in a ’slam’ between hometown favorites in Elizabeth and our city’s visiting entity. Local meter vigilantes even ticketed the car for parking in a crosswalk, on a day when snowcovered streets were unplowed and no whiteLines visible.

    My understanding was both the entering administration and its congressionally centered counterparts wished as zealously pristine a policy as possible given Fitzgerald’s poor timing in stirring muck in the WindyCity during a presidential interregnum. The latter I took to be Rove’s payback for Fitzgerald’s dispassionate competence in the Libby prosecution, all of it stemming from some grouchy donors who supported the multimillion$ defense of Libby 2006ff.

    Yet, Tribe and Balkin both seem to attest to the ‘clubbiness’, in a legal sense, of each of the chambers of congress. Though it should be interesting to read how exhalted the claims are, now that IL has left it to the Senate to state its reasons publically. I keep hearing Republican hyenas scoffing at the foolishness over the appointee’s credentials.

    When I worked in the lobbying entity, and in the campaign PAC outfit, standard fare were great gulps of money donated all sides of any contentious issue, sometimes even extending beyond the two principal candidates. The result is the cliche, obtaining access down the road, not to influence any specific immediate decisionmaking. Capitalist politcs it was.

  14. Nell says:

    I’ve misspelled Tom Geoghegan’s name; my only comfort is that so many have gone before me. His name, by the way, is easier to pronounce than spell: it rhymes with ‘Reagan’. His politics do not.

    • BoxTurtle says:

      How did this yahoo ever get chosen to lead anything?

      Maybe because nobody felt threatened by him?

      Boxturtle (Was going to add a /s, but upon re-reading it made sense)

    • LabDancer says:

      Might I suggest that, yahoo that he is, he was able to find just the right yahooity to assure the Senate Majority Leader that he would fit nicely into Reid’s agenda?

      A small prediction: the reports of Burris going without any committee assignments are going to turn out precipitous.

  15. tanbark says:

    [email protected]; I think that if Burris was the son of Albert Schweitzer and Mother Teresa; as pure as the driven snow (and we damn well know he’s not) that if they want to, the Senate can just say:

    “The governor that picked Burris has just been impeached, 114-1. We want to think about this for a little while…”

    Then: “WHOA! Blagojevich has just been removed from office for trying to peddle the same seat that he appointed Burris to? And we aint got no “say”?

    A week later:

    “So: Governor Quinn, who’s the replacement for Sen. Obama?” :o)

  16. tanbark says:

    If true…sad. Very sad.

    But, the dems will pay a price for this, and just like caving on the corrupt and bloodyhanded shit from the repubs they/we should. :o(

  17. Mary says:

    36 – You’ve got good points. I think it’s a kind of battered woman syndrome that makes me think you just have to settle and a real lack of trust that Democrats and I have anything much in common these days, after watching them the last 5 years.

    I cried when I read that from Mora too. I wish there had been things done and said by Democrats during that time that brought the same kind of tears to my eyes, but there weren’t.

  18. Mary says:

    32 – why does he do that? Even though I think that they didn’t have a good argument to start with, why stake a claim that you plan to fold? It’s just aggravating and plays into the straw man, knocked flat by any whisper of a wind, meme.

    EW – the Tribe piece was the one I mentioned earlier as reminding me of the Farside “then a miracle happens” cartoon. He starts and finishes with some sound “equations” but has a big leap into the abyss for the reasoning part. OTOH, it’s pared down for a non-legal op piece, so it’s hard to really judge.

    • LabDancer says:

      Okay, I’ll play.

      Obviously this particular “Powell Doctrine” is open to anti-democratic abuse [tho I’m not sure that really distinguishes it from all others with the same name]. But there’s a check on such abuse – as in “a system of check and balances”. Adam Clayton Powell’s case indeed illustrates that: it being painfully clear that the House was being led into using process to cover racism by a determining factor in its membership, the courts acted & ACP was seated in accordance with the true verdict of the voters in his district. This appears academic now, but, as I raised above, were the Illinois Senate to impeach MacBlago [certainly a distinct possibility, no?] and the new guv were to appoint Burris “as if anew” [It’s like a jingle you can’t get out of your head.], then Reid et al would be as naked to being over-ridden by the courts as was the House in ACP’s situation.

  19. Hmmm says:

    “WHOA! Blagojevich has just been removed from office for trying to peddle the same seat that he appointed Burris to? And we aint got no “say”?

    Sigh. Of course the Senate has a say. The Senate can expel any member at any time for any reason as long as they can get a 2/3 majority. That has always been true. Nobody expects that if compelling evidence (or even something as insubstantial as a mob mood) surfaces, Burris won’t be gone in a heartbeat. The only issue is — correction, was — whether he’s seated in the meantime. I have not heard anyone articulate what damage is done by seating that cannot be undone later by using the remedies the Founders and the Courts in their considerable collective wisdom have given us. Having to eat extra Pepcid for a month or two on account of being galled does not rise to the threshold of irreparable harm.

  20. LabDancer says:

    I AM TOO going to claim a full Debbie Reyolds on this one.

    Apologies in advance if by not having gone thru all the responses I’m stepping on someone’s keystrokes – but:

    [1] Assume Obama had chosen to express in public, not just the legality of his having to defer to MacBlago on this, but that he’d very much like to see Val in his seat – & MacBlago obliged, with intercepted shenanigans discussed within his inner circle as to how such “might” be exploited.

    [2] Assume Obama went with what he said in public, & Rahm told MacBlaggo Obama really wants you to pick Val & “you’ll have our gratitude” & MacBlago obliged, even with same internal shenanitalks.

    [3] Assume the Illinois Senate impeaches & the new governor appoints Burris “as if anew” [that’ll never grow old].

    Does Houston-on-the-Potomac have a problem with any of that? I don’t think so.

  21. LabDancer says:

    The NYT Caucus report suggests the Congress R-thoritarians are already in morning about the Burris saga – no longer speaking in fork-tongues, their leadership is starting to make sense:

    “By failing to strip Rod Blagojevich of his senate appointment power, Democrats chose to trust a madman over the people of Illinois”

    Your point, Congressman?

    • LabDancer says:

      Oop – missed the speaker is not in the US House, but “just” the chair of Illinois Rs. That changes everyth… – someth… – ah to hell with it: To some extent it makes the outcome in the Illinois Senate more obvious, and otherwise it shows this guy at least understands the Democratic party strategy in the state of Illinois.

  22. MadDog says:

    And More OT – From the the DOJ’s Office of Inspector General:

    Report of Investigation of Alleged Misuse of United States Marshals Service Resources by Joseph Band, January 2009

    And par for the course:

    …However, we believe that the instances discussed above demonstrate that Band committed ethical violations in requesting and receiving USMS resources for personal business, and that he lacked candor when we interviewed him about these instances…

    …We discussed this matter with the U.S. Attorney’s Offices in Boston and the Eastern District of Virginia, which declined criminal prosecution.

    (My bold)

      • LabDancer says:

        … tho if the DoJ is going to go after folks for “lacking candor”, it at least suggest another ’shovel-ready’ category of Obama Economic Plan projects: the construction of more prisons for former federal officials – & bi-partisan, to boot.

        • bmaz says:

          Oui, Captain Renault has been away today training ze Franch Fureign Leegion. Eet Iz hard work. Mary above has it about right pending my reading of Roudebush, which I am guessing is effectively tangential to the instant discussion as she suggests. There needs to be some level of prima facie something before the senate starts standing in the place of the Constitution and Illinois law and due process. There has been nothing contra to Burris in this regard. Reid has played a jackass hand from the get go, that is why Jane Hamsher is drinking Cordon Rouge on his chips. Bottom’s up.

  23. Mary says:

    52 – “Haven’t we watched all sorts of smart young conservative lawyers who are principled on some turfs but suddenly political hacks on others?” I dunno- I haven’t seen that many principaled lawyers of either ilk to really say, but IMO, Fein and Mora have gone beyond what any Dems have on illegal wiretaps and torture respectively (Fein also being pretty tough on torture). I never saw them act as hacks on those issues and those are big issues to me – whether they are pro-school vouchers etc. doesn’t really sway me much one way or the other. I will say on your other example:

    Lindsey Graham has held a strong and principled position against torture

    that I disagree. I have yet to see Graham do anythign strong and principled on torture. I saw him draft a DTA that had amnesty and also try to gizmodo a suspension of habeas and surfeit of oversight with it. I saw him make a pass, with a whistleblower like Provenance, that he would do the right thing, but then utterly and completely leave that boy hanging. I saw him question Alito and lay the foundation for lack of any remedy for torture victims in that questioning. I never saw him do anything principled on torture other than trying to sell the DTA as an anti-torture measure, which it was not. And he attacked the SUp Ct cases that have gone against the President. All he did was what Harry Reid does, blow some words out into the record to support whatever picture of himself he wants to paint. He will chew butt on some of these guys now and then in hearings, but when it comes to legislation and to votes, he’s been a foregone pro-torture cover up, anti-remedy vote. The only exception would be his willingness, in the end and after open revolt by JAG from all sections of the military, to not passs on Haynes for the 4th circuit.

  24. masaccio says:

    I took a look at the Roudebush case, and it says what Mary says. If there is some kind of controversy about who won an election, the Senate is the final judge.

    It is true that a State’s verification of the accuracy of election results pursuant to its Art. I, § 4, powers is not totally separable from the Senate’s power to judge elections and returns. But a recount can be said to “usurp” the Senate’s function only if it frustrates the Senate’s ability to make an independent final judgment. A recount does not prevent the Senate from independently evaluating the election any more than the initial count does. The Senate is free to accept or reject the apparent winner in either count, and, if it chooses, to conduct its own recount.

    at 405 US. at 26. The Senate’s power arises from Art. 1 sect. 5: “Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members.” There isn’t an election contest for the Senate to judge, but probably if there was some allegation of corruption in the appointment, there might be an argument that the Senate could act to judge the “qualifications”, although that raises the Powell problem, of adding some new qualification. The upshot is that Burris needed to be seated, and it isn’t clear that the CRS is right.

    • lllphd says:

      my my my, how the perspective has shifted here.

      masaccio, from your quote (have not read the whole thing), it seems the wording could be interpreted to include the burris situation, especially if someone questions his veracity on the contact issue. even so, the nature of the appointment, while perhaps not obviously legally corrupt, is still so ethically questionable (even reprehensible) that it raises quite seriously the possibility of corruption lurking in there.

      this is the perspective i’ve been trying to raise hereabouts, that it would be unseemly for the dems to just shrug this off to the letter of the law and move on. this has corrupt stink all over it, the kind where some legalistic lawyer worked quite hard to determine just how much crap blago could spew on the dems and get away with it (just like the tax loophole lawyers).

      reid would have been greatly remiss had he NOT pitched a fit over this overt inyourface suckthis act from blago, clearly NOT designed with the citizens of IL in mind (i know i know, that is appearing to be a job requirement there). but that is not acceptable – or at least should not be, and they have the responsibility to assert this – for such members to be seated in that body.

      • bmaz says:

        Yes; you and tanbark have made it abundantly clear you are willing to sacrifice the intent and letter of the law for political expediency; and to set a terrible precedent, ripe for abuse, for the future. And you are willing to do so in the direct face of the Illinois Supreme Court’s two decisions militating to the contrary. And you are willing to do so despite the fact that there is no “contest” at the state level, which is the same fantastical leap of imagination made by Larry Tribe and the shill squad that came up with that memo.

        Yes, there there is room to cover your argument. So long as you are comfortable fabricating a state level “contest” or “dispute” out of thin air vapor. Isn’t that the exact type of politically motivated disregard for the law and intent of law we have been decrying for the last eight years? It sure is to me. I am sick of Cheney/Yoo/Addington/Gonzales politicolegal sophistry.

        • selise says:

          you and tanbark have made it abundantly clear you are willing to sacrifice the intent and letter of the law for political expediency;

          bmaz, i defended you when this claim was made against you, not on the basis of actual disregard for the law but because of a difference in understanding of what the law requires – both in letter and in spirit. so i hope you will take me seriously when i say that imo you are now doing the same thing – making an unjustified personal attack on those you disagree with but who have shown no sign (as far as i have ever seen) of favoring political expediency over what is legal and right.

          • bmaz says:

            I honestly did not mean that as an insult. I could argue not to seat Burris because I have a distaste for the entire way he got there. And, believe me, I do. Morally, I could make the arguments every bit as strongly as llphd, tanbark, you and Hugh, and do so with some level of personal conviction; legally, I cannot muster that, the basis simply is not there.

            • bmaz says:

              You mean like when the pejorative term “legalist” is used and you excitedly pile on? Is that what you are referring to??

              • lllphd says:

                i’m not sure, but i may well have been the first to use the term legalist many posts back. i certainly did not intend it as a pejorative, and am not sure it is such inherently.

                i’m referring to the comments you’ve made like “you wouldn’t know a legal argument if it cracked you in the ass.”

                that sort of personal attack.

                the personal attack i felt in your first response to my comment today on this post was your misrepresentation of my position. at no point have i lobbied for the law being circumvented. but i am also not for the law being manipulated purely for vindictive power plays, while remaining “legal.”

                this is abusing the intent of the law, and i take great umbrage with your characterization that tanbark and i have argued for the sacrifice of either the letter or the intent of the law. in fact, the it is the intent that we are trying to preserve with our arguments, as – if i’m reading tanbark correctly – we don’t feel that the letter of the law can always capture the intent, or the spirit. hence the great vulnerability for abuses, even abuses that adhere to the letter of the law (tax laws, again, the easiest case in point).

                this personal stuff is just so damn unnecessary and distracting, and frankly off-putting. as i said in a previous comment that was likely past the shelf life of the post, while i champion and honor your legal expertise, your presentation can too often be so abrasive as to spoil anything of value you might have to say. it puts folks on the defensive and we end up in these ridiculous backandforth spitting sessions that just go NOWHERE.

                if we don’t agree with you, bmaz, can you put your arguments forth without so much vitriol? it would just make these debates a lot more productive. and pleasant.

                thanks in advance.

                • Hmmm says:

                  at no point have i lobbied for the law being circumvented.

                  I think that may be a matter of interpretation. You and others have argued that a process mandated by IL and US law and the US Constitution should in this case interrupted. Maybe that doesn’t seem like a serious problem to you, but it seems like a serious problem to me. And frankly on the facts — and please don’t take this personally — if we were to do that, then that sounds to me exactly like circumventing the law.

                  Now my disagreement is not the same thing as say the appointment shouldn’t be challenged, or that I’m the new chirpy President of the Burris Fan Club. Not at all. But the mechanisms that are clearly available for raising those challenges all happen to kick in -after- the appointee is seated, not before. Trying to invent a new procedure to deal with it -before- the appointee is seated is a novel idea and therefore both unclear and untested. So it might not work, is the point. The second point is that it’s also dangerous in that it opens the door to R’s refusing D appointments in the future whenever there’s even the faintest hint of suspicion surrounding the appointee (does anyone doubt they’d gin something up out of nothing?). And a precedent like that is forever.

                  I hope that helps explain a little better where a perspective that some have started calling “legalistic” etc. is coming from for some of us. Or at least for me, I wouldn’t presume to speak for anyone else.

                  • lllphd says:

                    as far as i know i have not advocated for the process to be interrupted illegally. what i have been lobbying for is the appropriate outrage that might find a legal way to thwart blago’s clear attempt to manipulate the law to his own vindictive ends. what i have heard is bmaz and others simply insisting it’s legal and that’s that and be done with it, shrug and move on. had reid done that, i’ll bet you pennies to pnuts all the same folks would be ticked at reid for not putting up a bigger fight.

                    and i still stand for the outrage at such bald face manipulations as this has been. in those instances, we should try to discover any means we can – within legal guidelines – to block such vile distortions of our legal system.

                    truth be told, it’s always seemed we’re mostly all on the same page and we’re arguing about the finer distinctions. that’s fine; but i take issue with misrepresentations of my position, as i’m sure everyone is, and when the rhetoric is at least courteous.

                    • Hmmm says:

                      what i have heard is bmaz and others simply insisting it’s legal and that’s that and be done with it, shrug and move on.

                      I don’t recall anybody saying anything like that. Accepting that seating is legal is not the same as saying nothing can be done and we should forget about the problems. There are remedies that are available after seating and I for one have repeatedly stressed that they can and should be used, particularly if actual evidence surfaces. I must say it’s been very frustrating to see this distinction consistently getting lost or ignored.

                      I do agree that civility here at EW’s place is key.

                • Nell says:

                  I have to join in this request. Please, bmaz, cut down on the hostility you display to commenters who disagree with you. Strong arguments, fine. Personal comments and insults, not. While it would probably clear the air a lot for you to apologize for recent instances, I’m not asking for that. Minimizing future occasions is the ticket. You’re a front-page poster, you add a huge amount to the site. With that comes a bit more responsibility to maintain a tone of discussion versus attack.

        • lllphd says:

          bmaz, i feel you are missing our point (if i read tanbark correctly).

          i would argue with your characterization that tanbark and i would “sacrifice the intent…of the law.” it is precisely that intent we are wishing to preserve. you have stressed the need for the citizens to have a full complement of representation in the senate, but another aspect to stress here is that the intent was to benefit the citizens of the state. under the presented circumstances here, that is not entirely clear. the circumstances of this appointment are rife with slime, and i continue to assert that reid was absolutely correct to be outraged and make every attempt to spare ALL of us, not just the citizens of IL, the insult of blago’s vindictive hubris in the face of his blatant corruption, especially with regard to this specific appointment.

          and i find it confused at best that you would note that the precedent makes it ripe for abuse when blago’s act ITSELF was an abuse of the law!!!

          at no point did i, nor tanbark i think, assert that reid or the dems should break any laws to further justice in this situation. what i know i asserted is that the law does not and CANNOT be written for every eventuality or exception (hence my reference to godel’s observation). it seemed more than appropriate to my eye that reid would do whatever he could to stall this in order to have blago impeached, convicted, out, and quinn do a clean and legitimate appointment.

          in fact, speaking for myself, i saw reid’s attempts not so much for political expediency (though, admittedly, there was some of that; he is, after all, a politician, and you are not), but for preservation of the intent of the law. the letter of the law does not – and indeed, CANNOT – cover our fullest (best or worst) intentions. laws themselves can be – and too often are – used and abused to completely twist their intent.

          precisely because corrupt minds will and DO, obviously, use and abuse the laws as they are written, to do their corrupt and evil work TO THE LETTER OF THE LAW, we must be very careful not to fall into the trap of becoming so legalistic that we lose sight of its spirit and its intent.

  25. LabDancer says:

    Might have been something in tonight’s bouillabaise, ‘cuz now I’m channelling Roland Burris:

    I fully realize that Americans throughout this wonderful amazing nation, the greatest nation in the history of this universe or any other for that matter, are greatly troubled by the fact that my entering the United States Senate as the junior Senator for the Great State of Illinois has come about due to the decision of one individual, someone in whose hands the voters of his Great State have solemnly entrusted their vital interests, yet who today stands before the public suspected of possibly having employed the powers of his office and that sacred trust in pursuit of what can only with the highest degree of charity be described as dubious objectives.

    And I do not for one moment claim, indeed it humbly hope and pray with every fibre of my body to the contrary, that it speaks to my qualifications, or to my own integrity and reputation as a servant of the public and the public interest, that the wounds from the memories of so many of his suspected betrayals of the sacred trust of our citizenry are so fresh, some indeed appearing to have been perpetrated, if perpetrated they were, in the year just gone past.

    It certainly can’t constitute any form excuse that he has been elected to public office on multiple occasions and over a number of years, and likewise it speaks volumes that, and the voters are entitled to consider that, as a trained lawyer, he of all people should be aware of the effects and the limits of the applicable laws, and more generally the importance of upholding the rule of law over the tyranny of men. But none of that had anything to do with, and I played no part in any of those dealings.

    As I stand before you my fellow Americans today, I can only hope and pray, and urge you, my fellow Americans, that, as loyal, patriotic Americans, all of us must strive to come together as a people, and leave the past to be dealt with by those responsible for attending to it, and allow me to do my job in concentrating and keeping one hundred per cent of my focus on the future and on solving the nation’s problems.

    And in closing, I say to the American people, while it’s not any of my business and each and every one of you is entirely entitled to your own view, and whatever it is you choose to think about his other activities and decisions while in elected office – but I still feel that I must say this: that no matter what those thoughts might be, the American people must accept that in enabling me to honourably serve the good people of the Great State of Illinois and to fulfill my destiny, Senator Reid has done the right thing.

    • prostratedragon says:

      From p.234:

      The typical economic analysis is based on moral hazard, excessive risk-taking, and the absence of risk sensitivity in the premiums charged for deposit insurance. … [E]conomists developed a nice theoretical analysis of such excessive risk-taking strategies. The problem with this explanation for events of the 1980s is that someone who is gambling that his thrift might actually make a profit would never operate the way many thrifts did, with total disregard for even the most basic principles of lending: maintaining reasonable documentation about loans, protecting against external fraud and abuse, verifying information on loan applications, even bothering to have borrowers fill out loan applications. Examinations of the operations of many such thrifts show that the owners acted as if future losses were somebody else’s problem. They were right. [Emphases supplied]

      Written in 1993, about events 5 to 10 years previously. Why, then, does every word, save the one reference to the decade, sound so fresh? As word filtered out several years ago about the shoddy methods of some lenders who at the same time appeared to be making huge profits from huge volume, what did the folks charged with watching the financial industries think was going on? Someone soon ought to ask them.

  26. sentinel says:

    There is far too much lawyering on this. Us ordinary folks don’t understand the intricacies of rules, regulations etc etc. Get Burris seated; let him serve his time; meanwhile groom an effective candidate for the 2010 race in Ill. All this handwringing about laws are fine when its FISA, torture and Guantanamo. But all politics is corrupt especially since 2000. So why take it out on Burris? When I think of Vitter and Craig I ask myself: who the hell are these people to judge Burris?

    • lllphd says:

      and furthermore why burris would participate in such a bald face dig, without thought to those citizens, especially when he had previously spoken so wisely about what a cad blago is.

      the whole thing stinks, and burris has done little to exhibit even a smidge of good faith here, so very little sympathy for him. him or his ego crypt. imvho.

  27. tanbark says:

    Bmaz, I have one question for you and the rest of the legalists:

    When Jane Hamsher puts up another screed at FDL savaging Caroline Kennedy and telling everyone why she’s unqualified to be in the U.S. Senate, are you going to be holding her hand?

    Enquiring disrespecters of the law want to know.

    • bmaz says:

      Should Paterson appoint CK, I will argue that she should be seated too. And, like with Burris, I don’t think she should be the appointee in the least. In fact, like Burris, it will pretty much personally piss me off. But I will certainly argue that, at that point, she should be seated.

      • lllphd says:

        these are not comparable situations. paterson is under no cloud or ‘taint’ and kennedy has not stated that paterson should not be in office. the whole point of the IL situation is this dawgawful taint. that taint is far more criminal than it is political.

  28. tanbark says:

    “…I will certainly argue at that point, that she should be seated.”

    I would think so, since, due to your support of Burris’s appointment, the word “unqualified” ought to be wedged in your throat like a bone from a 60 pound King Mackeral.

    So: when Jane takes off on Caroline’s lack of qualifications again, will you be posting your disagreement? I mean, she’s been savaging Kennedy for a while now, and I don’t recall any posts from you reminding everyone that an un-impeached and un-arrested David Paterson’s contemplation of putting Kennedy in that seat was perfectly “legal”.

    No. Selise, I’m just pointing out that some “progressives” have been hammering on Kennedy for a while for not having the right resume’ to be in the Senate, and some of them, notably, Hamsher, have been at pains to insist that Roland Burris DOES. I find that to be a little jog in logic and values that’s worth pointing out.


    • Hmmm says:

      With apologies in advance that I can’t stay here today to engage in a thorough discussion, I don’t see any real parallel between evaluating in advance the political pros-and-cons of a potential appointment of Princess Caroline vs. evaluating in retrospect the legality and practical options of a challenge to Burris’ actual and as far as we know lawful appointment. No legal question presents in the Kennedy case with any remote potential to cloud an appointment, so there is no prospect of a challenge, and that’s why the parallel breaks down. There is no reason I can see not to discuss Kennedy in terms of highly subjective views of qualifications, and/or political likes and dislikes, and I don’t understand why anyone’s subjective views on any of that would be scorned. Whereas with Burris it my personal opinion — obviously not universally shared — that we have left the realm of the subjective and any post-appointment challenge would need substantiation.

  29. bmaz says:

    But the difference is that NO one is arguing that she should not be seated if she is indeed appointed. If we had been in a pre-appointment discussion on Burris, like we are on CK, I would have been fighting side by side with you. Once the appointment is legally made, whether in New York or Illinois, the deal is done. The situations are inherently different. If Jane were to continue arguing that CK should be denied after a lawful appointment, you bet I would disagree and would take her on. But I find it just about impossible to picture that Jane would ever do such a thing; she knows when to make political arguments and when the law and process takes over.

  30. Mary says:

    79 – ??????????? Where the heck did that come from? I’m not sure if I’m in the “legalist” camp, but since I agreed with bmaz on the Burris analysis, I’ll figure maybe I am.

    I don’t have any strong feeling one way or the other on Caroline Kennedy and as a non-NYer, I’d have to defer to some of those with more vested interests on who to support. What I can’t understand at all is the kind of ‘kitchen sink’ comment that legal analysis of whether or not Burris would be entitled to be seated despite Blagojevich’s problems has anything to do with someone’s (Jane Hamsher’s) personal opinions about Kennedy.

    I admit to not quite understanding the degree to which CK has a lot of people upset, but there aren’t any legal issues on a NY appointment, since there hasn’t even been one yet, and presumably there’s not likely to be an issue of an impeached gov or a USA presser prior to appointment with accusations of selling the seat. It’s got nothing to do with you “like” or “want” for a seat to say Burris has a legal right to be seated – it’s like you want to equate a legal opinion with being BFF’s or &*$(#&[email protected]

    Since I mostly (not exclusively, but way mostly) comment and read on EW’s page, I don’t know if someone at FDL has made some kind of Constitutional argument against seating CK even if she’s appointed, but if they have and I come across it, I certainly would disagree with it. I’ve been odd man out on a lot of things at FDL (e.g., the “Comey love”) and I don’t have nearly the vitriol that you seem to have to those who disagree with me on that. As a mattter of fact, I respect what most of them have to say, esp when they back their opinions with facts.

    If someone’s life allows for them to dwell over taking great personal umbrage at someone disagreeing with them in an web post – that’s more their problem than someone else’s.

    • bmaz says:

      I’m not sure if I’m in the “legalist” camp, but since I agreed with bmaz on the Burris analysis, I’ll figure maybe I am.

      Welcome to my camp. We have good food and fine liquor here. And we like to laugh. Oh, and in the fall, there is that football thing too.