The Ugly Legal Optics Of Harry Reid's Burris Battle

Earlier this morning, Jane wrote a fantastic post, "Burris and Blago: What Happens Now?", that lays out most all of the concerns with the obstreperous position taken by Harry Reid and the Democratic leadership. I would like to follow up on a couple of legal points inherent in the discussion.

Illinois Secretary of State Jesse White: As you have probably heard, Illinois Secretary of State Jesse White has refused to certify Blagojevich’s appointment of Roland Burris. The problem I see with this is that there is no legal basis whatsoever for SoS White’s conduct in this regard.

White appears to be abrogating Illinois law all by himself, and he simply does not have the power to do that. Signing the certification is a ministerial act, not an established right of veto. The decision on who to appoint is the governor’s and the governor’s alone under Illinois law; there is no power promulgated for the SoS to have decision making authority. If White can simply refuse to sign the certification, and that stops the process in it’s tracks, he would have unmitigated veto power over the appointment. He does not.

Burris has obviously figured this out and has brought action demanding the Secretary of State endorse the certification.

Burris’s lawyers argued that White’s duties are strictly ministerial and that he doesn’t have the discretion to withhold his certification of Blagojevich’s selection.

“Any additional state requirement that Roland Burris must seek or obtain approval of the secretary of state to qualify as U.S. senator would be unconstitutional,” Wright said in the filing.

Whether you like Burris or not, whether you despise Blagojevich or not, Burris has now been duly appointed by a sitting governor; his appointment, absent evidence to the contrary, is valid on its face. White should sign the certification forthwith, refusal to do so is outside of his authority and is costing the citizens of Illinois valuable court time, resources and money; effectively a breach of White’s fiduciary duty to the state.

Harry Reid has lobbied against Illinois having a special election to fill Obama’s Senate seat, which they could easily hold concurrent with the election they will be forced by law to have for Rahm Emanuel’s open seat in Illinois’ 5th district. Reid is likely personally responsible for there being no opportunity for the public to vote on the next senator; now Reid is urging extra-legal (effectively ultra-vires) action by Illinois. He should butt out.

Powell v. McCormack: But wait, there is more! Yep, Harry Reid, who couldn’t be bothered to bring his legislative acumen to bear to protect the 4th Amendment in the FISA battle, is now going to expend every inch of his soul, including having capitol police physically restrain a duly appointed black man from taking his seat in the Senate. Again, simply brilliant optics. Or not; really not. As Jane indicated, there are basically two views on the propriety of this blocking action, that is not viable (the "Lemieux position") and that it is complicated, but viable (the "Balkin position").

I have read both Balkin and Lemieux. In my somewhat suspect eyes, Lemieux has the, by a good measure, more legally sound take. Doesn’t mean a more contrived view like Balkin’s won’t carry the day if this matter is litigated; but I sure think Lemieux’s is a lot cleaner and truer to Powell v. McCormack and the Constitutional intent.

…missed in many discussions about the Burris appointment is the fact that the Senate is probably unable to prevent him from being seated as a matter of constitutional law. The Supreme Court ruled 8-1 (and 8-0 among justices deciding on the merits) in Powell v. McCormack that "in judging the qualifications of its members, Congress is limited to the standing qualifications prescribed in the Constitution." It is possible to distinguish the cases — the fact that Burris is appointed obviously mitigates the problems with Congress interfering with the integrity of elections that Douglas discusses in his concurrence. Still, the bottom line of Warren’s majority opinion is unequivocal and directly on point; if Burris were to litigate an exclusion a lower court would almost certainly rule in his favor, and I doubt that the Supreme Court would overrule. The Senate could expel him after seating with a 2/3 majority, but (absent strong evidence that Burris obtained the appointment illegitimately) this seems unlikely. Reid’s remedy is likely to be to prevent him from joining the Democratic caucus.

Again, we don’t have to like it, but the better take on the law rests with Burris being seated pursuant to his appointment. If there is no evidence of corruption or wrongdoing with his appointment process (and acts he took that you disagree with when he was previously in elected office do not count in that consideration), and there is none I have seen, Burris ought to be seated so that Illinois is fully represented and so that Democrats have a full complement of Senators for the difficult work that will start on January 20. Harry Reid is making an ass out of himself and Democratic Leadership (to the limited extent there actually is Democratic Leadership).

You have to hand it to Reid, though — managing to look less responsible and likable than Rod Blagojevich is a very impressive feat of sheer political incompetence.

  1. PJEvans says:

    Can we get someone to replace Reid? I don’t care whether it’s appoittment or special election, but it’s clear that Reid isn’t doing the job he was elected to do, and it’s obvious that he’s not up to being Majority Leader.

    • Teddy Partridge says:

      Every single Senate Democrat signed Reid’s letter asking Blago not to appoint and urging a special election, iirc. Therefore, we must presume that Harry Reid is exactly the Senate Majority Leader his caucus wants. While not everything he’s done might meet with their approval, the fact remains that the Democratic caucus has gained a majority under his leadership, and has made great gains in their membership since gaining the majority.

      I am no fan of Reid’s but his constituency is not us, it is his caucus. And his caucus views increased membership, having happened on Harry’s watch, to be due to his leadership. Therefore, I expect no move to replace him.

      The only hope we had was that Harry Reid might have been encouraged to focus his energies on his 2010 re-election, and that he relinquish the Majority Leader’s position in order not to jeopardize that campaign. That effort has not borne fruit. I think Harry Reid is now eager to put his name on the Obama agenda and ride that hopefully successful effort into the history books.

      A primary challenger in Nevada will get support from me, but I don’t expect it. And I think the Majority Leader’s job is Harry’s until the caucus shrinks. When their numbers start to dwindle, as they inevitably must, Harry may be tossed aside.

      Until then. we are probably stuck with him. He’s the Majority Leader the Democratic Senate caucus wants, and that is all that matters.

  2. FrankProbst says:

    While I agree with you that the SoS has no right to stamp his feet and hold his breath and refuse to do his job, I disagree with your statement that “White should sign the certification forthwith.” If the man feels strongly about this issue–and it seems clear that he does–he can hold a big press conference and announce that he is resigning rather than having anything to do with this appointment.

    • manys says:

      If the man feels strongly about this issue–and it seems clear that he does–he can hold a big press conference and announce that he is resigning rather than having anything to do with this appointment.

      Absolutely, but he shouldn’t pretend to make any noise about having any other power here besides control over his own employment. In fact, he should probably resign just for making the power grab at all.

    • bmaz says:

      What does that accomplish? I would assume that Blagojevich appoints his replacement. Even if there was some other mechanism to get the next SoS, the court would order that person to sign the cert. He ought to just do his duty, and that is to sign the damn certification.

      I don’t think Burris is the best possible choice, and I think there should have been a special election concurrent with that for Rahm’s seat, which is mandated by law. But there, thanks to Reid, is not going to be a special election; Burris has been duly appointed under the law. That appointment should be honored whether we like it or not, because continuity of law, and the rule of law, counts.

      • LabDancer says:

        “I don’t think Burris is the best possible choice”

        And, other than Bobby Rush and anyone with an ambition to have their remains interred in the Burris Memorial Tomb, I would think everyone out there agrees with you – including, critically, MacBlago.

        It appears the main contributing reason that MacBlago has been able to make this mess is that Burris, and apparently Burris alone, among an extremely widened category of candidates one could reasonably describe as “Arguably Credible Including Real Head Scratchers” – or ACIRS was willing to accept appointment.

        Stay with me here: What if ALL arguably credible appointees, absent the Real Head Scratchers, were so willing? If that were the case, then Burris, as far as I can tell, would not make qualify. And what if all ACIRS were so willing? In that case the selection of Burris would still constitute a remarkable disappointing choice – and in that regard perhaps approaching something like as disappointing as his being selected in THESE circumstances.

        Thus, what distinguishes Burris is his SINGULAR willingness to stand out among an unnaturally widened category of ACIRS, in failing to appreciate, or denying, or both, the best interests of the party brand in allowing himself to stand associated with the chief executive of the state at a time when it is extremely difficult to see that chief executive as other than nakedly corrupt.

        Put another way, Burris is unique is his willingness to actively collaborate in the devaluation of the currency of one of the state’s two seats in the nation’s senior deliberative body.

        bmaz, like you I’m underwhelmed by Jack Balkin’s take, but in my case [and maybe yours too] what particularly underwhelms me is its being so technical. Balkin does point to, and in that context at least implies its better than his, the take at Slate [link here]

        and its that take that gets me to where I see the rubber meeting the road.

        Finally, I too am underwhelmed by Reid taking up the leadership in the Senate, or at least Senate Dems, position on this mess – but by extension on somewhat the same reasoning you cite: that the symbolism of Reid in the lead has already been so de-valued by such things as his shenanigans on the FISA amendment and his more general failure in applying a higher technical standard [and an artificial one to boot] to his own party’s heroes than to the curs in the other party.

        • foothillsmike says:

          I am sorry but i don’t believe that this is particularly relevant no disrespect intended. But I can’t believe that the IL constitution has any exceptions. Burris is qualified to serve in the senate of this there can be no dispute. Blago is entitled to make the decision of this there shouldn’t be any dispute. All of the rest might be worthy of a footnote someplace but still irrelevant to the issue.
          450 hrs & 23 min

          • bmaz says:

            In fact, Blago’s competence to serve as governor (which by definition includes making this appointment) has already been determined by the Illinois Supreme court. Arguing that Blago does not have the competence to make this appointment is a complete loser of an argument at this point.

            • foothillsmike says:

              Good Point. Blago may not win the war but he has won this battle like it or not.
              450 hrs & 13 min

        • bmaz says:

          Yep, I wish to reiterate, I don’t particularly like any of this. There were better ways to proceed. The special election as noted above. Another option would have been to have actually had some leaders sit down with Blago and come up with a consensus choice and rolled with it. But Reid, Obama and the Dem Leadership are so fucking obstinate and obstreperous that they refuse to deal with Blago long enough to accomplish that. But with the circumstances I see right now, as painful as it is, as much as I hate it, this is how I see it.

          • Sixty Something says:

            Do you really think that Reid, Obama, or the Dem leadership could have dealt with Blogovich? I don’t.

            It has nothing to do with obstinence. It has everything to do with what is right and wrong. Would it be right for the Dem leadership to seat anyone, black white or purple, qualified or not, to be appointed by someone who has been caught on tape trying to sell the seat to the highest bidder? I think not. You better believe that they would be crucified if they did so without a fight.

            Put aside whether Burris is black or qualified. Put aside what Reid or the Dem leadership could have/should have done. Put aside whether the law applies to these “extenuating circumstances”. It doesn’t. The law isn’t always fair, or right.

            Personally, even if Reid has to eventually concede (give in) to the “law”, I think it is right that he is taking this stand, just as I think it right that the SOS in Illinois is taking his stand.

            The people of Illinois deserve representation in the Senate free of the taint of a Blogovich appointment. Everything else put aside, that is the right thing to do.

            That said, I personally think both Blago, and Burris are assholes. Blago for appointing him, and Burris for accepting.

          • Teddy Partridge says:

            I’m not sure anyone could meet with Blagojevich to work out a consensus choice without a legitimate fear of being asked what’s in it for Blago, and being taped hearing that request. He’s too toxic for anyone to meet with and have any expectation of fair-dealing or privacy.

            On the other hand, he’s the governor. The governor has the duty to appoint a successor to Obama. The Senate has the constitutional right to review the qualifications of its members. Burris meets the qualifications.

            You want to talk about ugly optics? Having the sergeant-at-arms block the pathway of a legally appointed Senator to the seat of the President-Elect, when both the former Senator and his successor are African-American and the entire United States Senate is currently white. That’s some ugly optics for ya. Between the two of them, Barack Obama and Harry Reid may piss off two of the Democratic party’s most reliable constituencies: LGBT and AA.

            Seat Burris. Get busy with the people’s business. There’s lots of it, Majority Leader Reid, if you’d simply put down your fiddle and pay attention.

      • FrankProbst says:

        What does that accomplish? I would assume that Blagojevich appoints his replacement. Even if there was some other mechanism to get the next SoS, the court would order that person to sign the cert. He ought to just do his duty, and that is to sign the damn certification.

        It’s what you do when your boss tells you to do something that you find morally repugnant. Frankly, I wish we’d some more people do it over the past 8 years.

        • LabDancer says:

          Could this work? better?

          White resigns al la Richardson rather than perform the duties of his office in the face of something so abhorrent –

          whereupon the line of administrative law requires MacBlago to seek to appoint a compliant SOS –

          which given the Pepe Le Pew fragrance of this episode in the Tragicomedy of MacBlago can hardly be an easy task –

          but assuming he finds a candidate willing to be Mr Toad #2 –

          to record his appointment of Mr Toad #1 –

          the power – and focus – reverts back to where it should be: an Illinois legislature.

          • bmaz says:

            Suppose all this costs the Democrats and the nation the vote in the Senate needed to pass the stimulus package or to pass some other immediately critical bill? There is no legitimate basis as to Burris himself that I have seen, other that the appointing mechanism involved Blago. You want to bugger the works that and go through all this contrived path to avoid the clear intent of Senatorial succession law in Illinois to do that? Really?

            • LabDancer says:

              You’ve over-stated your case, counselor. Go over to 538 Nate’s house and look at all the various permutations of the Senate: Obama is as clear of the b.s. 60 rule as Reid has the guts to make him.

              • bmaz says:

                Yeah, I thought so too until I saw some information today about the effort of Blue Dogs (and yes they are currently organizing in the Senate) to work against the stimulus and some other things. And Reid IS an issue. so, I am not so sure the case is overstated.

                • LabDancer says:

                  If Obama were all that concerned about it I’d expect we’d hear him preaching peace in the valley and it’s time to seat Mr Toad.

                  Frankly, I’d far rather Louis Farrakhan than Mr Toad, if only for the music.

                • LabDancer says:

                  If Obama was all that concerned you’d think we’d be seeing him coming out for peace in the valley and to seat Mr Toad.

                  At this point I’d prefer Louis Farrakhan, and not just for the music.

  3. Loo Hoo. says:

    Any chance that Reid is stalling for time hoping for a quick impeachment of Blago and a special election for Obama’s seat along with Rahm’s seat? I know that there is some concern that they would have to actually win against the republican, but dang, is Reid really this bone-headed? Doesn’t the Senate Leader have good legal advice?

    • Jane Hamsher says:

      I think Reid wants to punt and have an “investigation” that will last until Blago has been impeached, and then let his replacement make an appointment.

      I don’t think he’s interested in a special election. I understand why, but with all the corruption and toxicity of everyone involved in this mess it’s probably the only thing they can do and lay claim to any integrity.

      • bmaz says:

        Yeah, the refusal to leave the matter to the citizens of Illinois and live with their rightful decision is disturbing. Especially when there is already an election going to be held. I understand it would cost a little more to make it statewide for the Senate seat, but that is money more than well spent.

        What is going on now is a first rate harmful clusterfuck.

  4. KayInMaine says:

    Something tells me Reid will also have Obama impeached before the end of his first term, because Reid is one of those Democrats who wants to show how tough he is by going after other Democrats.

  5. sagesse says:

    Someone needs to list all the times that Reid has postured and then backed down. All the times Reid has not even bothered to posture, but sold out from the Get Go. Reid is not really a Democrat. How did he ever end up in the position he is in? I remember at the time being baffled at why he was chosen. A conservative Mormon from the interior West in the pocket of every foreign-owned gold mine that is raping the West? Come on – that is not the leadership the Democratic party needs.

  6. foothillsmike says:

    That Reid sure knows how to pick his battles. Where is Durbin in this mess? I believe it is time to start a stop Reid Pac or something. Find a Nev. challenger and get him started failing in that back a Rethug just to let the dems know where we stand. If Lieberman can do what he did and get handed a high powered comittee chair we can play that game.
    450 hrs & 37 min

  7. JaneaneTheAcerbicGoblin says:

    Why is it that Reid and the other Dems get all in a tizzy about this Burris/Blago business, trashing their fellow Dems, yet let Bush and the GOP get away with obstructionism, corruption, bullying, stupidity, and the like? Reid and the Dems don’t get all ruffled when the GOP is pissing on them.

    Blago will be gone in 2010 regardless. He won’t win re-election. Burris should be seated, period.

  8. tbsa says:

    The only thing more pathetic than the corrupt republic party is the complete and total lack of leadership in the democratic party.

  9. hackworth says:

    Jane’s point re: Reid’s threat of using The Sergeant-at-Arms in order to physically bar the door against Burris as contrasted with Reid’s complete fold when Myers and Bolten and another Republican scoundrel ignored Congressional subpoenas – is pertinent. Also, Reid’s acquiescence to Liebercreep shows what kind of Milquetoast Reid is. And the FISA shenanigans Reid pulled. And Reid ignored Dodd’s hold while recognizing Republican holds.

    How can we shitcan Reid? He is a horrible Senate Leader. He’s great for Republicans. They could not ask for a better gift than feather in the wind Harry Reid as the opposition leader. Reid is Colmes to any Republican Hannity.

  10. wagonjak says:

    “Fighting” Harry Reid has lately replaced Lieberman as the most hated man in the progressive blogs. Any story with any connection to Reid has hundreds of angry, mocking posts about his total lack of leadership in the Senate.

    I agree with all of them. Harry seems more intent on going after his fellow Dems then fighting back against the criminal Bush administration and it’s Republican enablers in the Senate…

    He is spineless and cowardly and picks his fights incompetently. The Dem leadership should find a replacement, but I’m not sure Nancy “impeachement is off the table” Pelosi is the one to do it. She is just as gutless and clueless as he is, and our Senator Diane Feinstein would be even worse.

    With the huge chance Obama has to change the direction of this country in a more populist direction, the Dem leaders in the Senate have shown they are only capable of strongly worded letters and total passivity!


  11. foothillsmike says:

    Then again the dems may be raising a lot of noise to prevent the taint from extending beyond IL. The rethugs are/will attempt to do this it is their SOP
    450 hrs & 3 min

  12. JaneaneTheAcerbicGoblin says:

    Being from Illinois myself (I live in NYC now), and knowing a thing or two about Illinois politics, Burris is, considering the cloud that surrounds Blago, a safe, non-threatening pick. Burris is not perfect, and has lost a lot of primary elections, but his name is well known throughout Illinois, and believe me, Blago could have done worse.

    Reid should stop bitching about this and just seat Burris.

    Then Reid should retire in 2010. He’s a lousy leader.

  13. masaccio says:

    The main reason, in fact, the only reason, I wanted Hillary Clinton to stay in the Senate was the (no doubt vain) hope that she would replace the pushover Reid.

  14. SanderO says:

    Name one good thing that Harry Reid has done.

    This is so lame it’s amazing. The dems are a pathetic lot, they really are.

    • hackworth says:

      Reid touts passing a budget as a big success. According to Reid, the Republicans couldn’t pass a budget, but the Democrats did when they won the majority.

      And what a fine budget it was. Brilliant.

  15. Mary says:

    It’s not even so much that Reid is willing to “go after” Dems but not torturers; it’s that Reid isn’t willing to do anything tough, period. All the talk about Burris is pretty much just that – talk. He can take a hugely, immensely unpopular politician, Blagojevich, and be on the “other side’ of him, without really having to ever do all that much. Talking about Sgt at Arms etc. is like all his yada yada about “accountability”

    I think bmaz is right and on the legal arguments, Burris has most of the cards. The Slate piece is pretty lightweight and relies on two cases where the Senate had something legitimate to look at to determine the actual power of the Gov in those settings to appoint – in the one case, the point in time when the 17th amendment applied, in the other case, whether the existing state legislation actually gave the power to the gov to appoint if the legislature knew of the vacancy and simply recessed before exercising the then existing legislative power of appointment.

    Here you have a sitting and unindicted Gov under valid state law making the appointment – something that would never be questioned but for the USAs press conf alleging that there were efforts to sell the seat. I think everyone believes that Blagojevich did try to sell the seat (not to Burris) but “everyone thinks he did a bad thing” is not really a valid grounds for the Senate to refuse to allow a state to select it’s Senator under state law.

    Would have been nice if that state law had gotten a quick change before Blago exercised his appointment, and maybe a lot of states will want to consider amending their legislation now to allow state legislatures to put a hold on the exercise in some cases, but for now you have a pretty clear state law and a pretty clear exercise of the power to someone who is involved in any of the USAs allegations.

    You set some horribly bad precedents by not seating him. But the Reids and Obamas really don’t want to be stuck with the politics of Blago being deemed to have been “allowed” by “them” to make the appointment, so they are willing to let the politics trump the law – which seems to be a Dem and Fed gov specialty these days. I’m not sure I understand why we bother with law at all anymore.

    Certainly, Blagojevich seems to be a remarkably scuzzy guy. But look at how quickly Nancy Pelosi leaped on board with torture, felonious and unconstitutional surveillance, and taking “impeachment off the table”
    Every time you turn around there is a different selling point for why people are supposed to be willing to vote for Dems. Bc they aren’t torturers, but they are. Bc they respect the Constitution, but they don’t. Bc they will defend a woman’s right to choose, but if they don’t vote for them anyway. Bc they will be more competent, but they aren’t.

    They all sold themselves on the telecom vote, but we are supposed to be shocked over Blagojevich. They all sell themselves routinely and when there isn’t a blatant $$ attached, no one blinks – even when a part of the price is millions of refugees and thousands and thousands of dead, detained and dehumanized.

    I think the only thing really shocking has been the bad acting jobs of everyone from the prosecutor and FBI agent at the presser to the IL AG and her dad to Reid to Obama to White etc. They’ve all hit every trite note, but for invoking stars and garters.

    Hopefully Blagojevich will be both convicted and impeached (I think conviction is more important than impeachment, bc I think it is important to show the law applies to the heads of Exec branches) but the farcical drama crap from the long long list of torture supporters is something I could do without.

    • Teddy Partridge says:

      Yeah Mary’s right. And being called out for ethical violations by Harry Reid doesn’t taint Blago one bit. It’s a badge of honor.

      Seat the Senator, please.

  16. SanderO says:

    It’s very simple Harry, Accept the decision of ask for a special election and see what the Il legislators wants.

    How bout some deMOCKracy?

  17. freepatriot says:

    so ried got outplayed by blagoff after blagoff suffered a fatal political wound ???


    really weak

    • Teddy Partridge says:

      Reid has been outplayed by a President who stamped his feet and held his breath until he got funding for “his troops” since 2007. A President who hasn’t had the approval of the majority of the American people in his second term, ever. A President whose Vice President is universally reviled here and abroad, who shot a guy in the face.

      Outplaying Harry Reid doesn’t take any skill, it takes a pulse. But in Blago, Harry has certainly met more than his match.

    • LabDancer says:

      Not quite.

      What Blago has suffered is a wound – one overwhelmingly likely to fester and superate even without his being indicted [BTW not by Fitz, but by a grand jury hosted by Fitz, whether or not as a ham sandwich, but given Fitz’ track record and based on what we’ve seen so far, a righteous meat sanny].

      Blago has played a card – an outrageous card one that, even should it “succeeds” in carrying Burris into the US Senate, does nothing more than heighten the animus Dems and Illini will have towards him and the wider view of his being a narcissitic clown, certainly for a long time, probably so long as he lives, and quite possibly thereafter.

      While others were engrossed in footbowls, I watched a heck of party in Wrigley Field, and during one of the between period extended breaks, I saw highlights of the US-Canada junior game last night, featuring an early exhibit of hubris from a youngster on one team, followed shortly thereafter by a bitchin’ payback by a stronger youngster from the other team, leading into the defeat of the team of Taunter #1. Ice cold, but very life-like. Now that game’s history [and maybe just prelude: there are playoffs to come].

      But this one involving MacBlago, Burris, Reid, Fitz, Obama, Emmanuel and a cast of hundreds – – it’s still afoot.

      • freepatriot says:

        from what I’ve heard, convicting Illinois governors is as easy as shootin fish in a barrel (50% is about right, shooting fish in a barrel ain’t as easy as it looks …)

        having a gov found not guilty is the big money bet here

        so I’m thinkin the fix is in

        Fitz is gonna take a dive during jury selection, or something

        that’s why I’m betting on blagoff an taking the points …

        did I ever mention that I got a bad habit of turning everything into an opportunity to gamble ???

  18. bmaz says:

    You want to talk about ugly optics? Having the sergeant-at-arms block the pathway of a legally appointed Senator to the seat of the President-Elect, when both the former Senator and his successor are African-American and the entire United States Senate is currently white. That’s some ugly optics for ya. Between the two of them, Barack Obama and Harry Reid may piss off two of the Democratic party’s most reliable constituencies: LGBT and AA.

    Exactly. And they appear to have nothing that taints Burris in relation to the appointment other than it is Blago doing the appointing. Well the freaking Illinois State Supreme Court said he was competent to carry out the acts of the Office of Governor. It may suck, but that is pretty much the end of the story. Seat the dude and go about fixing the country.

  19. Loo Hoo. says:

    Ian Welsh’s take:

    Over the years, few people have been as harsh as I have to Harry Reid. But he’s not wrong, Senate Democrats are not wrong, to not want to seat a man so morally depraved that he would even consider accepting an appointment from a man who tried to sell that seat. If the law requires him to be seated, so be it, but that’s not settled till the courts rule on it, and there is nothing wrong with making them rule on it.

    Love this dual opinion happening right now on FDL!

      • bmaz says:

        You are actively arguing and cheerleader for elected officials to take the law in their own hands and disregard the orderly rule of law as it appears to exist on the books. This may feel good to you at this moment in time, but is a terrible precedent to set. The measure of a democracy is to follow the rule of law even when it is contrary to your desires and that of the mob mentality. The process is more important than the individual result.

        • LabDancer says:

          Counsel, as well as anyone here you know that using legal means to achieve just results is not the same as perverting the law, and that a commitment to the Rule of Law is not equivalent to taking the least difficult line to the end.

          I’m with those who disagree that Illinois SOS has the power to decline to record the appointment. If he feels strongly enough about it, he can follow the precedent of Elliot Richardson and resign rather than do something that so offends his sense of propriety – and add yet another dramatic twist to this collaboration of Bill Shakespeare and Groucho Marx.

          But the entire Dem caucus in the Senate has given Reid his marching orders, and as non-obvious as their use of the power to object to seating Burris might be, I’m with them on this. Burris is no different from Mr Toad, and his ride should end early and with the same sort of prattish ignominy as every one of Mr Toad’s ended.

        • Hmmm says:

          The measure of a democracy is to follow the rule of law even when it is contrary to your desires and that of the mob mentality. The process is more important than the individual result.

          Quite. Thank you for that.

          (As I opined on Ian’s parallel thread, sorry for cross-posting:) There might be an important Constitutional issue buried in here. The Constitution currently tells us that Senators can expel a Senator once seated (which is currently premature for Burris), and they can refuse admission of a new Senator on the basis of a dodgy election or the candidate him/herself being unqualified (neither of which apply to Burris), but Senators have zero authority to reject any state’s lawfully executed Senatorial appointment. My point is that this would be a terrible, terrible precedent to set that could well lead to a major Constitutional crisis down the road in a time of great national emergency — imagine e.g. coordinated assassinations of Senators of a given party, etc. If this precedent were established, it would allow the remaining Senators to reject the replacement appointees, ensuring themselves a majority — a coup hole. We can’t allow that.

  20. Mary says:

    56 “But the entire Dem caucus in the Senate has given Reid his marching orders”

    Again I channel Pink with a “So What?” The entire Dem caucs in the Senate doesn’t have a constitutional role, or an Illinois state law role, in who the Illinois Senator will be or should be. The body that could have and should have done something was the Illinois legislature – it is very pre-eminently state’s rights and state law that impacts a State’s selection of their Senator. There’s a reason Bush v. Gore causes ducks of embarassment by the Sup Ct – otoh, maybe that’s the precedential line others want to walk. Not me so much.

    If there were a legitmate issue under state law, or under the Constiuttion, as to the ability of the Gov to appoint, then what the Dem caucus thinks might balance on the scales with a rat’s ass, but no one can point to where that issue exists.

    *No one claims Burris tried to purchase the seat.
    *The Constitution specifically provides that state legislatures can opt to have either a special election (the default) or can specifically empower their Gov to appoint for a Senate seat.
    *Illinois statute provides for the Gov to appoint to fill a vacancy.
    *Despite many many days since Obama’s resignation (during all of which time, Blagojevich was under a cloud of investigation), and a fair number days since the USAs press conf passing, the IL state legislature (perhaps due to pressure from Reid or perhaps due to a multitude of other factors such as costs) the state legislature has not opted to change the legislation that allows Blagojevich to appoint or to impeach him.

    So – what else can’t Blagojevich do with the presser hanging over his head? Right now, he’s not indicted, not impeached and not appointing anyone who is involved in the indictment issues and scandals. He is not disenfranchised from acting as Gov under either state or federal Constitutions; the state legislation empowering him to appoint has not been revoked; under the federal Constitution the appointment is a state law and legislature matter; and the state legislature has not even undertaken the political action of impeaching.

    I’d maybe go along with there being some kind of issue that might be crafted for the Senate (although even there it would be a stretch) if there were evidence of Burris being one of the bidders on the seat, but there’s no hint of that so far. To date, what you have is Gov A publically accused of multiple bad things and people wanting to let the US Senate then substitute itself for the IL legislature and for IL law and for State and Fed Constitutions and decide what a Gov can and cannot do in his official capacity when he’s been accused of doing bad things.

    Interestingly, the Senate actually has that JOB when a President, rather than a State Gov, has been doing the bad things. They have resoundingly failed to perform their job over and over and over, but apparently they have time to do the IL legislature’s job for them?

    Really, I think Reid knows (just like he knew with the habeas suspension of the MCA) that the position is not legally defensible, but it makes him look like he did something (kind of the point I think is being made in 40 above) And he thinks he gets the political points for screwing the law over bc hell, that’s what has been happening for years now. Insulate war criminals with the DTA and MCA, all the while pretending you were doing something, and with a real disdain and contempt for every tenet of law and morality that you violate with that legislation – then go pretend Blagojevich is shocking, just shocking.

    I do think Blagojevich is shocking – much more so on the children’s hospital front than wheeling and dealing on the Senate seat (who actually believes in the fairy tale that those seats aren’t purchased one way or another or that Obama wouldn’t have wanted to wheel and deal, with “other things of value” if not money on his seat or that all of that isn’t part and parcel of politics) But for the men and women who have presided over the literal and figurative dismemberment of the American military and hordes of civilians to don their Sunday best and speechify on all this makes me gag.

    But that’s just me, and my dentist says I have an easily triggered gag reflex.

    (44 – thank you, but I know I drone and get shrill – it’s hard to care enough to try to tone it down and be more succinct anymore)

  21. Hmmm says:

    The imagery just hit me: Reid is setting himself up as George Wallace barring the door. Cripes, wotta maroon.

    • bmaz says:

      Heh, yeah that was what I was alluding to in the post; the optics are really not good. On a lot of fronts, but that is certainly one of the big ones.

  22. JohnLopresti says:

    There are many issues worthwhile in a lot of the posts in the thread. I still think Reid is just jabbing pugilistically, left, dance. As for Pelosi liking torcha, I would like to soften that with a comparison to the hint of fear I discerned in several G8 pronouncements over a few of those years; I think even people like Harman showed a lot of soul; and Daschle is nominated to a leading post in the administration now taking its places in government. Maybe the National Archivist will help historians write that record in the public sphere in 2030. The middle of the road USSenate Democrats are what a centrist Obama will have as his furrow for a while. If Afghanistan ever winds down and soldiers start returning to their “homeland”, reintegration of the people who implemented Rumsfeld’s kind of works against stateless actors will be a task handed to several more generations of people. I appreciate it is better to advocate than welcome the ennui of laissez faire centrism, yet, I think leadership is willing to let the Благо dustup develop. It would surprise me if Scotus opts to chastize the ILsupCt. Maybe there is a chance for realignment within IL politics as the scandal develops and is resolved. I think Obama has a lot of strong centrists oxymoron there, to develop his circumspect policies in a much wider field than the still recuperating senate. Sometimes I wonder if senate ever has a generation change. I admit to having yet to read the ACPowell case. I recall a few years when his seemed to be a beacon of light in WA-DC; Ron Dellums polity reminded me a lot of that. I think Obama has a lot of ship to sail, and some good captain qualities. I, too, wondered what his career would become when he made some comity speeches early in his term. I think his community organizing and enduring adjunct professorship interest in electoral law superb predictors.

  23. sagesse says:

    Hmmm. No surprise. I lived in Logan Utah in the late 70s when the Mormon Church leader (am forgetting which 80-year old it was at the time) had his Revelation that blacks could join the church. The Revelation announcement was televised. There was innuendo at the time that the BYU basketball team needed some taller players. Western conservatives do not take kindly to Black folks. Add the LDS pedigree …

  24. PJEvans says:

    Kagro X has more about seating Senators at Congress Matters, accessible via the Great Orange One. He’s looking at previous instances of disputed seating. It’s worth noting that the seats in question did get held by the senators, even though one died in office not too much later (health).

    [The particular cases discussed are Bilbo and Langer – both as corrupt as anyone we’ve seen in the last eight years.]

  25. Sara says:

    Couple of odd comments…

    First of all “All Things Considered” says the Illinois House will take up the impeachment of Blago early next week, and apparently the votes are more or less counted, so the Illinois Senate will do the trial in about three weeks. House requires a simple majority to impeach, they didn’t say what was required for conviction in the Senate. Point being, Blago could be long gone by the end of January.

    Rather than just looking at the legal issues here, I think we need to look at the whole saga in Political Culture terms. Illinois and Chicago do have a particular way of thinking about political constructs, and has for generations, and people who live thereabouts, study the system, or even participate in it know it has strange rules, some of which are decidedly illegal, but what the hell, it is Chicago.

    One clear rule of Chicago Politics is that you never let anyone “get ahead,” “get out front” if you will, unless you have something on them, something that can serve as blackmail currency in case you need to control them or the process. It can be as simple as knowledge that you once fixed a traffic ticket, or that you greased a contract of some sort that probably didn’t need greasing at all to succeed — the Chicago Political game is just played with the “got something on them” in your pocket at all times. Rather like the old curious habit in Chicago of putting your driver’s license in a plastic holder, and keeping a ten dollar bill behind it. Cop asks to see it, hands it back sans your bill, and off you go.

    As I look at this whole Saga, I think what Blago was initially playing for was “a little something on Obama” — he may have thought he had something with Rezko, but that Investigation/Trial pretty much showed the Rezko/Obama relationship was trivial. But putting Obama’s Senate Seat on the Block, and letting Obama’s people know that, just might have been the “something on him” that might be useful at some future juncture. I suggest that Blogo thinks like this, and the vast majority of other Chicago Pols do too.

    Once it happened — I see Reid and the rest of the Democrats in the Senate stepping in to put up a barrier. That is why Reid is out front with a firm line laid on the ground, and it is why all the Senate Democrats are lined up with and behind him. Harry knows a lot about Chicago Pol rules — a variation on them is the play in Nevada after all. My guess is that as soon as the Obama people understood what Blago intended to do with the seat, (an auction) they let Senate Democratic Leadership know, and they rounded up the troops to make it unanimous. There are all sorts of reasons why they would want to get the target off Obama’s back, and at the same time get it off theirs.

    Notice I haven’t mentioned Fitzgerald yet — I rather doubt if they knew details as to what Fitzgerald already had, how far his investigation had gone, and indeed who he might be targeting before they drew the line in the sand and began to set up the defenses. Given what Fitz put on the record, they can’t back down.

    They can kick the can down the road — send the appointment to the rules committee for 3 months, by that time Blago is impeached, perhaps indicted, and then they can negotiate with Burris and the new Governor for a transparent and fair settlement.

    • bmaz says:

      Sure they can do that, as long as you don’t mind them looking like crap, bastardizing the law and setting lousy precedent for future malicious mischief. But Harry Reid has never been much of a long term thinker; nor much of a short term one either. Mostly just pathetic.

  26. Sara says:

    bmaz, the question isn’t the qualities per se., of Harry Reid, it is why did the Democratic Caucus agree on him as first Minority Leader, and now Majority Leader. He serves at the pleasure of the caucus, and when the choice was made they were saying something about what kind of leadership they wanted.

    Clearly they didn’t want someone with independent star power. If I remember, he ran for the seat against Chris Dodd, and Dodd lost by just a vote or two. They didn’t want a Lyndon Johnson type leader, who would twist arms, play off factions, offer carrots and sticks for committee assignments, amendments and all. Many of the Senior Democratic Senators are more attracted to their committee chairmanships than they are to floor leadership and consultation regarding every member’s particular interests. Harkin finally has his Ag Committee, Boxer her Environmental assignment, Finestein gets Intelligence after all these years, Leahy keeps Judiciary, Kerry gets Foreign Relations — and on and on it goes. Who do they really have, into a second term, and gifted at herding cats from the center who doesn’t want a starring committee chairpersonship? We don’t have all that many mid-career Senators (Elected at least 6 years ago, but not yet a committee chair,) largely because we lost some during the Clinton Years and the Republican Domination But we have perhaps 19 Democrats in their first term. But in the classes of 2006 and 08, I can see several real leadership possibilities. Cardin, Webb and Whitehouse all come to mind.

    I think the constant refrain that Harry should grow a spine and all the rest is misplaced, because he was selected to be the Senators’ leader — not our leader, and he must be pretty much what those who voted for him have in mind.