The Reid/Durbin Fabrication On Burris

burris1thumbnail.thumbnail.jpgBy now you know how poorly Harry Reid and Dick Durbin have played their aces and eights hand on the Roland Burris appointment to Barack Obama’s former Senate seat. Reid and Durbin went all in with their chips on the Illinois Secretary of State and, predictably, lost their pleated dandy shirts.

Illinois law and the Constitution have always been contra to Reid and Durbin’s intransigence on Burris, but the disingenuous duo have always fallen back on their precious ancient Senate Rule II. They have steadfastly portrayed themselves as honorable protectors of the high ground of ethics, and citizens and the rubes in the media have bought off on it. To wit, Durbin grandly proclaimed late Friday:

…the Senate seat could remain vacant until Blagojevich is removed from office and the lieutenant governor takes over, making a fresh appointment.

He said the Senate cannot waive a 125-year-old rule requiring the signatures of both the governor and the secretary of state on any election or appointment.

Now, it is hard to tell whether these lustrous paragons of virtue are being intentionally dishonest, or are simply tragically ignorant of the questionable foundation of the argument they rely on. But it is one or the other. First off, as Jane pointed out Friday,

the 1884 Senate rule Durbin and Reid rely on was promulgated before the passage of the 17th Amendment as well as before the Supreme Court decision in Powell v McCormack. Reid and Durbin are duplicitous in thinking their antiquated Senate rule trumps the official selection pursuant to the 17th Amendment and Illinois statutory law.

So, there is that. But, guess what? After all this, it turns out the vaunted Senate Rule II isn’t even the bright line mandate they have been stating. In fact, Senate Rule II is simply an antiquated suggestion for a document template. While subparagraph 2 of Rule II mandates that the Secretary of the Senate keep a journal of all certificates signed by the governor and secretary of state of the appointing electing and/or appointing state for each Senator, the operative language on the form of the certificate is, contrary to what Reid and Durbin have been stating, not mandatory in the least. From the official Senate Rules:

3. The Secretary of the Senate shall send copies of the following recommended forms to the governor and secretary of state of each State wherein an election is about to take place or an appointment is to be made so that they may use such forms if they see fit. (emphasis added)

So, not only has any "mandatory" effect of Rule II been modified and/or abrogated by the 17th Amendment and Powell v. McCormack, but the thing is suggestive at best in the first place.

But, wait, there’s more! The Senate Pinocchios are at it again when they say the Senate "cannot waive" strict compliance with, and that there has never been any diversion from, Senate Rule II. Indeed, the Senate has done just that, and quite recently too. And it was in another case of a highly dubious cronyish appointment in a hotbed of corruption state. Yep, it’s our old friends in Alaska. Go figure.

When Frank Murkowski was elected Governor of Alaska in 2002, he resigned his Senate seat and appointed his daughter Lisa to fill the seat. There was no countersignature from the Alaska Secretary of State on the appointing certificate. There couldn’t be, because Alaska is one of six states that do not have a Secretary of State. Now, in fairness, there is reason to believe the Alaska Lieutenant Governor countersigned Murkowski’s nepotistic appointment certificate; however, the episode is proof of the complete intellectual dishonesty of the position that Reid and Durbin have been publicly peddling. If the Senate can accept the technically non-compliant countersignature of a Lt. Governor, exactly how do Reid and Durbin intend to refuse the word of the Illinois Supreme Court and the independent acknowledgement of authenticity just supplied by the actual Illinois Secretary of State?

There is not one single aspect of this imbroglio in which Roland Burris, and master tormenter Blagojevich, have not handed Reid and Durbin their rear ends on a silver platter. Now it turns out even their vaunted fallback is founded on vapor. It is time for them to quit while they are only terminally behind.

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  1. brantl says:

    It is however, true that while the 17th amendment allows the TEMPORARY selection of a senator or representative, its wording does NOT allow a governor to appoint a PERMANENT replacement. This is (by the 17th amendment) supposed to require a special election. Why don’t we follow the actual wording of the 17th amendment? There is no legal reason that it can’t be followed.

    • bmaz says:

      It is being followed in New York, where the special election would be the next regularly scheduled statewide election which is 2010 and there will be a “special election” for Clinton’s seat at that time with an appointment in the meantime. Nobody has been crying there. In Illinois, there was some sentiment for a speedy special election, but Harry Reid and the Senate Democrats lobbied against it, and caused it to be dropped as an issue.

      So, while Illinois is in compliance with accepted historical practice and procedure, the reason there is not an immediate special election is pretty much Harry Reid and the Senate Dems not really wanting to have to defend a real election against a GOP challenger. If you read the 17th, Illinois is well within the ambit.

    • gbsavatar says:

      “It is however, true that while the 17th amendment allows the TEMPORARY selection of a senator or representative, its wording does NOT allow a governor to appoint a PERMANENT replacement”

      The appointment is temporary “until the people fill the vacancies by election as the legislature may direct.”

      No appointment or election is EVER permanent. Candidates for the the Senate are elected every six years. Appointed Senators (even those appointed by special election) stand for election whenever the term of the Senator they are replacing ends.

  2. BoxTurtle says:

    Reid has gotten used to operating under BushCo. Inconvienent laws may be papered over, until the final appeal is denied.

    And it actually only makes him look the fool to folks like us. Who already knew he was a fool. Most folks think Senate Rule #2 is something about passing notes in class. Burris = Blago = Bad, so anything that stops him is fine with them.

    Where the heck are these loopholes when I get a speeding ticket?

    Boxturtle (Blago probably goes to bed snickering)

    • BoxTurtle says:

      That’s the way it should work. I don’t see any lawful way that Burris can be denied, unless he does the honorable thing and declines. Which he’s not about to do.

      But I still think Blago will avoid impeachment by recusing himself. Then life becomes VERY interesting if Fitz loses his case.

      Boxturtle (Was worried that EW & Bmaz might not have much to write about with BushCo gone. Silly Me!)

        • BoxTurtle says:

          There is a provision of the Ill constitution that allows a Gov to “step aside” in circumstances such as this. The Lt Gov takes over until the situation is resolved.

          Does that stop the impeachment process? Unclear and never litigated.

          If Blago is absolved 5 years down the road, does he get to finish his term at that time? Unknown and unlitigated.

          I see Blago’s lawyer becoming very rich.

          Boxturtle (Msg to said lawyer: The McLaren is nice, but the SL65 AMG is a better choice)

  3. T-Bear says:

    Reid and ethics? that turkey couldn’t find either ethics or his ass using both hands and a flashlight following written directions.

    • selise says:

      reid is a jackass. but that doesn’t make what blago and burris are doing right – i mean, blago just got impeached for, among other things, abuse of power in a plot to exchange the senate seat appointment for personal benefit. we’re not talking some unrelated crime. how that does not put a question mark over the whole process is still something i don’t get.

      • T-Bear says:

        My understanding is Blagojevich is still Governor, no trial of the facts has occurred, and he has not been removed from office. Furthermore, from the laws of that state, the Governor has ultimate prerogative to name the replacement. None of this is dependent on your or anybody else’s sense of ethics. Like it or not, Burris is so named despite accusation and innuendo based upon supposition of things transpiring behind closed doors. When, and only when the Governor is removed from office, is he unable to name the replacement, your sensibilities are of no consequence whatsoever.

          • foothillsmike says:

            If he had the senate might have had grounds to not seat him but he nominated Burris who from all appearances seems to be clean. This premature guilty verdict is nonsense and the guilt by association stuff is incredible.
            192 hrs & 1 min

            • lllphd says:

              duh. that’s precisely WHY blago chose not to appoint himself. which makes me even more suspicious of burris. blago has some sort of seedy plan lurking in all this. he was too calculating to simply be playing out a vendetta.

              and ariaminor, would you be happier with burris or someone pat quinn appoints? and are you truly willing to just let this go, however legalistic it might be, without a fight? are you willing to settle for this questionable burris appointment, or are you more interested in getting your rightful full compliment of representation from someone you can trust, at least a site more than burris and blago?

              i bring up the jim crow laws again because – forgive me, no insult intended here, but please think about it – having grown up in the deep south, i saw regularly this very same argument you present being used to justify keeping out those damn yankee troublemakers, going down to their states and towns trying to tell them how things should be run. outside instigators, they called them.

              i respect that IL has a right to its full compliment of senators, and that you have your laws to achieve that. but also please understand that the entire country is ultimately affected by the votes of these senators, and we can therefore opine about them, given that the consequences of these elections bear consequences for us all. this is why we sometimes contribute to the campaigns of national officials outside our own jurisdictions (lots of that went into the achievements of the dems in nov.), and why we talk about the shenanigans of such characters as stevens and delay and lott and cunningham and so on and on and on. those in congress ultimately affect us all, and we are all after all in this together, are we not?

              • foothillsmike says:

                Prior to his arrest Blago’s priorities were to get that money. After his arrest it is my perception that his priority became stay out of jail. It is this perception that causes me to say that we are not going to find anything to hang Burris with. Given that Burris will not be found to have done anything wrong it will be impossible to not seat him. Everything that has been done with regard to this conforms to the letter of the law. Get used to saying Senator Burris like it or not.
                191 hrs & 21 min

              • ArlaMiner says:

                Since this is, in fact, only a TEMPORARY replacement, until the end of PEBO’s senate term, yes, I am ok with Burris – even if he can’t get himself elected Dogcatcher.

                In fact, that is WHY I am ok with it. Because he WON”T make it through the primary, even as incumbent, because people really don’t think he has the qualifications. So he stumbles around for a year – (Obama’s term would have expired in 2010), then gets replaced, but in the meanwhile, I have TWO fax numbers to tie up with my letters of outrage, TWO e-mail addresses to clog, FOUR (counting both Illinois and DC offices) to deluge with snail mail. Right now, Sen. Reid is denying me – and all of the rest of Illinois, whether they like it or not – 1/2 of our Senate representation just because he THINKS our Governor is a naughty boy. (Blago most probably is – but that nasty “presumption of innocence” clause, dontcha know…)

                Y’all sound like you think that Burris would be the Senator for life. I don’t think anything at all could be further from the truth.

                • Hugh says:

                  Y’all sound like you think that Burris would be the Senator for life

                  No, it is just that I don’t see why he should be Senator for one second.

        • brantl says:

          Actually, the constitution of the United States overrules the Illinois law, and it requires a special election. A temporary replacement can ge chosen by the governor, but the permanent replacement is to be chosen in a special election. Period.

          • bmaz says:

            And, actually of course, that does not contradict T-Bear’s comment in the least. The operative language of the 17th Amendment is:

            When vacancies happen in the representation of any State in the Senate, the executive authority of each State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.

            Illinois law has specified the procedure to be followed in Illinois and is in complete satisfaction with the 17th Amendment.

            So there is no Illinois law here that is superseded, or as you put it “overruled”, it is all in compliance. Therefore, I am not really sure what your attempted point is.

  4. RickMassimo says:

    There was no countersignature from the Alaska Secretary of State on the appointing certificate. There couldn’t be, because Alaska is one of six states that do not have a Secretary of State.

    See, this is where I go from bemused head-shaking to actually angry. Because if Reid and Durbin did five minutes of looking into these rules, they’d know this. So all they’re doing is banking on the assumption that Chris Matthews, George Stephanopoulos et al don’t know this, and so won’t tell the nation this, and so there’ll be just sort of a general consensus that Blago and Burris should just quit bothering everybody.

    Which is doubly infuriating, because of course it wouldn’t work on Blago and Burris. But Reid and Durbin think it would, because after all, it would work on themselves.

    • bmaz says:

      Yeah, that is kind of my beef too. I don’t care one whit about Burris. Illinois and the country deserves something better and more cleanly produced. But the people whining the loudest, Reid and the Senate Dems, are the exact reason there will not be better because they directly and forcefully lobbied against the proposed Illinois special election. Then they try to cover their asses by being disingenuous about their little Senate Rule.

      Jane is right, this is the worst poker playing evah.

      • RickMassimo says:

        This whole thing is an illustration of what happens when you want something done but you’re afraid people will call you icky names if you do it yourself.

    • BoxTurtle says:

      Sen. Byrd knows senate rules better than anybody. Ever. He’s a Democrat. You would think that Reid could find his office number with a little effort and that Byrd would return his call.

      Either Byrd has aged to the point of senility, or Reid didn’t make that call.

      Boxturtle (He behaves like he’s getting advice from Cheney)

  5. foothillsmike says:

    Gov Ritter is on a statewide tour introducing his pick to replace Salazar. His pick came out of nowhere and people not familiar with Denver schools are wondering who is this guy.
    !92 hrs & 36 min

  6. selise says:

    Illinois and the country deserves something better and more cleanly produced. But the people whining the loudest, Reid and the Senate Dems, are the exact reason there will not be better

    you telling me we are not capable of whining louder than reid and the senate dems when we decide we want to?

    • bmaz says:

      I am telling you that the boat has sailed. The appointment, as distasteful as it may be, has been legally and Constitutionally made and, to avoid engaging in Bushlike legal sophistry and setting some of the worst precedent imaginable, Burris pretty much has to be seated.

  7. foothillsmike says:

    So far the house seems to be tending to business but the jury is still out. The senate however has managed to remain as a one ring circus.
    192 hrs & 22 min

    • BoxTurtle says:

      That gas sucker doesn’t even have a roof!

      I’ve drove both the SLR and the SL65 AMG on the test track. I was unable to find any performance difference in that environment and I tried. Disclaimer: I’m NOT a trained race driver, just an occasional speed freak.

      The SL65 was more comfortable from the moment I sat down. And I could get two for the price of the SLR.

      Boxturtle (Now that I know about that edition, I must test drive one. MUST!!!)

  8. ArlaMiner says:

    As an Illinois citizen, I have to agree with T-Bear here, and add my own little note – Selise, your gentle sensiblities aside, I am entitled to representation in the Federal Government by TWO Senators.

    While you’re right that the politicing is questionable, the fact remains that all of these things that are ruffling your feathers are Standard Operating Procedure in Illinois, have been for ages, and are probably not going to change anytime soon. Iffen ya don’t live here – please don’t presume to decide what we should do about our congressional representation.

    I’m not a Burris fan, I don’t like how this was handled, but it was handled letter-of-the-law legally (except for Jesse the Tumbler refusing to sign) – and should be respected by Reid and his Cabal.

    • Hugh says:

      As another citizen of Illinois I disagree. I do not see how the selection of the stooge of a corrupt governor transmutes into me or anyone else in the state being fairly and adequately represented.

      • BoxTurtle says:

        I do not see how the selection of the stooge of a corrupt governor

        Who’s stooge would you prefer? Anytime you have a SELECTION, you get somebodies stooge.

        Boxturtle (It’s good to know who’s pockets your elected representatives are in)

        • lllphd says:

          boxturtle, c’mon. some stooges are surely better than others. and some governors are surely better than others.

          this is where the comparisons of blago to CO and NY makes sense, by way of stark contrast.

          • freepatriot says:

            some stooges are surely better than others.

            Curly was WAAAAY better than Curly-Joe

            and DON’T EVEN GET ME STARTED ON SHEMP

            what ???

      • R.H. Green says:

        The problem here is that you have a duly elected stooge of a govenor. Elections have consequences, and the people have to live with the consequences of their choices. I’d like to say that the people should smaten up, but looking at Greenwald’s article yesterday about Obama’s cavein on torture, a lot of us are going to be cringing about our choice.

        • Hugh says:

          The problem here is that you have a duly elected stooge of a govenor.

          Burris was selected not elected by the current governor. This governor has been impeached and will face a trial, and likely conviction in the state Senate and removal from office. This is an extremely rare occurrence in American politics so the idea that this will somehow affect future appointments elsewhere is doubtful. The first item in the impeachment bill is directed at Blagojevich’s attempt to sell the Senate seat. So his subsequent naming of Burris to that seat can not be seen as a separate and independent action. They are linked and the taint which attaches to the one extends to the other. I would finally point out that an appointment is a process. Just because Obama, for example, nominates say Clinton for Secretary of State does not mean that everything is over and done with and that it would be a violation of the rule of law for her not to get that job. That’s because there is a process involved and things can happen in that process that can affect the end result. Now the Burris nomination is also a process albeit of a different kind, but it is still a process and things can happen completely within the rule of law that can affect or change its end result.

        • T-Bear says:

          The problem here is that you have a duly elected stooge of a govenor.

          If you were anywhere on the British Isles and you made a statement as you did, you would very quickly find yourself in court defending yourself, very unsuccessfully I would add, against a charge of libelous slander. Nowhere in Burris’ CV is there mention of stooge of the Governor. You would not have a leg to stand on and you would be paying Burris’ legal costs. You need to curb your opinions, they are neither true nor accurate. Burris has a right to his good name and reputation, your opinion denies him that. Courtesy would have saved you big-time. (and governor is spelled incorrectly)

          • dakine01 says:

            Actually, in American English, Governor is the proper spelling. Rather like the dual spellings of honor/honour (and I know there are a number of other words that have different spellings between British and American English with both being correct).

  9. foothillsmike says:

    The real question should be after the homage paid to convicted fellon Stevens and all this garbage over Burris and with clowns like Reid and McConnel running the circus Is the senate relevant to the United States
    191 hrs & 54 min

  10. lllphd says:

    bmaz, i again do not grasp why you are so bellicose about this situation.

    reid and the dems clearly are stalling, albeit a bit gracelessly (but they – as you astutely point out – don’t have a lot to work with), in order to keep from seating burris. once burris is seated, it will be damn hard to get him out, unless his testimony before the state legislature brings on an impeachment (that’s within the senate’s power), but what are those odds?

    they do not want to seat burris, and i believe we all understand why that is, and most of us agree that the reasons they don’t want to seat him are, well, reasonable.

    if they stall long enough for the IL senate to try blago and kick his sorry ass out, then the lt gov will take over and be in a position to appoint a senator over and above burris. granted, this will make legal matters even more complicated, but i suspect the dems will lean toward not honoring the appointment of an impeached governor, even if he made the appointment before he was impeached. and i suspect they’ll get a good deal of public sympathy on that matter, and that burris will not. especially in IL.

    granted, this runs afoul of the ‘letter of the law,’ but if the letter of the law is there in this case to serve the people of the state of IL, many would ask how the solution i describe above does not provide that service better than blago did? (and comparing this case to NY is laughable, not even apples and oranges, and a grave insult to governor paterson.)

    i’ll submit a further question on all this: so many are so up in arms against reid in this situation, but i have to ask you what his options were? you seem to be saying that his ONLY option was to seat burris, shrug and move on. well, i further submit to you that, had reid done this, all the hyper-progressives would be just as up in arms as they are now, calling him a wuss and a coward and on and on blablabla, needling him to DO something. this is frankly tiresome, and begins to sound as fanatical as the rightwingnut religioso insisting that the government do their bidding.

    in addition to the legal facts in this case, there are also political facts; these are NOT one and the same. the political fact is that blago’s appointment of burris, however legal, was a political outrage (and some -even lawyers i know – find it a legal outrage because he was clearly thumbing his nose in the face of the people of IL and manipulating the law to serve his own vindictive agenda). hey, damn it! jim crows were LEGAL! they were an outrage, but they were laws. tax laws are manipulated all the time, but especially by the very rich to avoid what those laws were designed to do, which is provide revenue to serve the common good. lawyers tend to think strictly about these things because that is the training and the professional agenda; the best lawyers are those who can think this way.

    but life is not contained in those laws. the legal input here is truly insightful and helpful, but it does not – to my mind – always constitute wise political thinking.

    and nor does the bellicose tone. what is the point of this circular firing squad? at least put the damn guns down. please.

    • dakine01 says:

      Could the tone be because after listening to folks complaining about the extra legal activities of BushCo for the last 8 years, that, because following the legal niceties in the Burris appointment now becomes inconvenient, folks are looking for a way to abrogate and avoid following the law as written?

      We are either believers in the rule of law or we’re not. If a law, as written, doesn’t suit, then let’s work to get it changed. But let’s follow the laws as written, even when the result (Blagojevich legally appointing Burris to fill the seat until the next election) is inconvenient to our purposes.

      • Twain says:

        Have to agree. Blago is a crook and Burris is sorta nuts, I think. I would prefer someone else but this is legal. Let’s get on with important business. Reid is an idiot – conclusion.

    • bmaz says:

      I am not sure what bellicosity you are referring to. I call them as I see things legally. I might be wrong, but this is how I see it (and don’t think I am wrong). I have repeatedly stated it is fallacy to think that you can simply wait this out and appoint someone different. A legal appointment has already been made. It is one of the worst precedents imaginable to let meddling Senators blithely override lawful appointments and jigger the process until they find someone they like better. You do that and you will live to regret it many times, and much more powerfully, in the future. It is also crappy manipulation, in the worst Bush/Cheney/Rove fashion of established state and Constitutional law. Just a bad idea.

  11. gbsavatar says:

    Durbin and Reid continue to channel W.: the laws don’t apply to us. We make them up as we go along.

    Neither one is fit to hold office in this country.

  12. BoxTurtle says:

    The only thing that Reid can do LEGALLY to stop this is to permit him to be seated, then impeach him. An impeachable offense is whatever 75 senators decide it is.

    Boxturtle (But Reid doesn’t have the cajones to play with those stakes)

  13. Hmmm says:

    The IL Supremes put the whole thing pretty crisply:

    Moreover, no explanation has been given as to how any rule of the Senate, whether it be formal or merely a matter of tradition, could supercede the authority to fill vacancies conferred on the states by the federal constitution.

    We note, however, that nothing in the published rules of the Senate, including Rule II, appears to require that Senate appointments made by state executives pursuant to the seventeenth amendment must be signed and sealed by the state’s secretary of state.

    It isn’t about Burris’ rights or repute, and it isn’t about MacBlago’s repute, it’s about MacBlago’s legal authority to make the Burris appoint at the time he did, and about the US Senate’s Constitutional obligation to honor the appointment because there is no evidence that it was made in a manner not conforming to the US and Illinois Constitutions and relevant law. If actionable evidence manifests later, litigate then.

  14. tanbark says:

    Dear Bmaz; for one of the people most loudly shreiking “Rule of law! Rule of law”, while pimping for the seating of an appointee by a governor who was just impeached 114-0 by the Illinois legislature, and of whose choice it can be said that his very thought processes are, unspinnably, for sale, to be ranting about “the paragons of virtue” who are trying to stop this fucking charade, is not a good choice of words.

    I ask you for about the sixth time: what harm can be done to us by waiting for the legislature to decide on Blago’s fitness to remain in office, relative to his actions that were taken BEFORE he finally found someone willing to sell himself and his opinion?:



    And just to bring a little levity to the discussion, here’s the reason why Driftglass deserves to win the “Best Individual Blogger” award:

    http://driftglass.blogspot.com…..-baby.html

    Happy voting! :o)

    for that Senate seat?

  15. tanbark says:

    It’s also worth asking what harm would there be in the Senates referring Burris’s appointment to the Rules Committee for a few weeks?

    And, one more time, we already know the answer to that. :o)

    If the people so diligently flacking for Burris don’t get him in ASAP, they won’t be able to get him in at all. :o)

  16. tanbark says:

    RHGreen: “…you have a duly elected stooge of a governor…”

    We also have a duly IMPEACHED(114-1) governor. :o)

    Who, in the next few weeks, is very likely to be removed from office for his attempts to peddle that Senate seat. Who subsequently appointed to that same seat, a man who changed his opinion of Blago’s fitness to remain
    in office 180 degrees, AFTER Blago picked HE, Roland Burris, for the seat.

    And the people who think that the U.S. Senate should be constrained by the purity of “legality” from using procedural rules to block that appointment, are as wrong as two left feet.

    Burris was talking about showing up for another Capitol media dog-and-pony show this week. We’ll see about that, but he better hurry. It looks like the Illinois legislature is willing to risk damaging his claim to the seat by removing his corrupt benefactor in the near future. :o)

    • dakine01 says:

      But right at this time, Blagojevich is still legally serving as governor of Illinois, with all the rights and privileges associated with that office, isn’t that correct?

      Or would you wish to have laws passed that would block governors (and presidents) from exercising their official duties upon Impeachment and not having to wait until they have been actually convicted and removed form office?

  17. tanbark says:

    No, he doesn’t have all the rights and priviledges he had earlier. For example, the Homeland Security office has yanked his clearance to see it’s classified data.

    And anyone who thinks that he can freewheel in the Illinois government with pre-auction agility doesn’t understand what is happening.

    Also, the notion that the U.S. Senate has no say in the fitness of whom it seats, is nonsense.

    As for Jane Hamsher’s assessment of conflicting statutes relative to this issue, she can babble all she wants, but she’s not a court. If it comes to a lawsuit, deciding that is going to take some time, and that is something that Burris and the people who are backing him, don’t have a lot of. :o)

    • dakine01 says:

      I know he lost his clearances. I wrote an Oxdown diary on that when it was announced (wondering if the DHS had yanked the clearances of all the Republicans under investigation or if they just did it for Democrats).

      And you are correct that since he is under a criminal complaint from the Feds and Impeachment from the IL House, he can’t freewheel it like he most likely intended.

      But I would also be wary of challenging bmaz and Jane Hamsher on the legalities. Especially when you are backing Reid and Durbin in the rest of the Dems in the Senate. Their track record of folding after having their bluffs called is pretty well documented.

  18. tanbark says:

    Well, since you concede all that, why on earth would you say he was serving with all the rights and priviledges he had before this started?

    And, I’m not at all wary of challenging Hamsher and Bmaz. They seem to be claiming that the U.S. Senate has no say whatsoever in whom it seats. I think that, on the fact of it, is nonsense.

    And, as I pointed out, any resolution of the differing statutes is going to take time.

    Read and Durbin DO have a track record of folding on important issues. And they may yet do it on this, but I think it’s not entirely their call. There are going to be some other senators, including, I would hope, some republicans, who have no desire to be serving with an unprincipled hack who was appointed by a governor who has been impeached in a nearly-unanimous vote, and who is very likely to be removed from office in the near future, as well as indicted on multiple counts by a federal prosecutor. I would hope that if Reid and Durbin revert to jellyfish type, they will then have trouble keeping the troops in line.

    We’ll see.

    • dakine01 says:

      Well for one, I was speaking of the rights and privileges afforded the governor of Illinois by the Illinois state Constitution and laws.

      DHS is a federal agency and Security clearances are a Federal issue.

      Governors can actually perform their duties without having Federal security clearances, although I’ll admit it may be a bit more difficult in some areas. The DHS involvement and granting of clearances is still relatively new and we do not know how those particular regulations will function in a non-BushCo world.

      Maybe I’m an idiot, but the track record I’ve seen is that bmaz and Jane actually do their research on the law before posting. Obviously emptywheel has found a possible out for Reid and Durbin laid out in her post upstairs but even there, it is open to contention.

      I’m not a fan of Burris or Blago, but as it stands right now, they have the clearer upper hand legally (at least so it appears to me). The mroe Reid and Durbin try to spin this or delay, the more foolish they look if/when the courts rule against them. Right now, better to just back down, seat Burris then wait for him to lose in the primary in ‘10, which he will most likely do.

  19. T-Bear says:

    That is the reason for: Ersatz edit. And don’t I know it although I attribute most of the problem to the MacBook having sticky keys that don’t connect.

  20. T-Bear says:

    BBC breaking news

    Obama replacement will be seated
    Roland Burris will be allowed to take up Barack Obama’s vacant US Senate seat, officials have announced.
    Senate leaders had tried to block Mr Burris’s membership, because he was appointed by scandal-hit Illinois governor Rod Blagojevich.
    But Mr Burris’s credentials have now been verified to the satisfaction of the senate leadership.

    http://news.bbc.co.uk/2/hi/in_depth/7825434.stm

  21. Otay says:

    You would think these “leaders” of the senate would know something about the law, considering it is their job to know and make laws.

    Yet they were played for complete rubes on, guess what? That’s right, the law. After being so publicly cocky about their stance against Burris on, guess what? Yep, the law.

    And then they so publicly fold after being humiliated on their completely unfounded stance on…the law.

    After everyone and his dog were cringing in anticipation, waiting for them to make fools out of themselves caving for the umpteenth+1 consecutive time.

  22. brantl says:

    No, that part that says that they shall issue writs of election to fill such vacancies is the prime part they are also allowed to appoint says temporary appointments. Shall means they have to do that. The proviso that they can temporarily appoint someone to the vacancy is only unitl the people fill the vacancy as the legislature may direct. The special election is REQUIRED. The appointment of a temporary replacement is OPTIONAL, but the special election is still REQUIRED, as the Constitution of the United States is worded. You are wrong.

    • dakine01 says:

      And special elections will be held in ‘10 for the remainder of the NY senate seat term as well as the Delaware seat.

      Both Colorado and Illinois seats would be up in ‘10 anyway.

      The “tradition” if you will has been to allow the various governors to appoint for up to two years until the next scheduled election. If there are years remaining on the seat after that, then it is a “special” election, otherwise, it is a regular election. Since the precedent has been set over the years with out contesting, I doubt if you’ll get it changed.

    • bmaz says:

      Actually, I am not wrong. The modifier “provided” makes the exception that states may determine the timing of any election set. As Dakine points out, the practice in states such as Illinois and New York that have so legislated is to set the special election for Senate seats as the next statewide election, although they are free to set sooner or otherwise. This is entirely consistent with the express wording of the 17th Amendment.

  23. brantl says:

    All governors that are appointing term replacements are going against both the spirit and obvious intent of the 17th amendment.

  24. brantl says:

    Provisio aren’t to be allowed to overturn the items that they are attached to. This is a poor legal argument and a misinterpretation of the 17th Amendment. Whether it’s been judged legal or not, it is a misinterpretation of the 17th amendment. And it says ‘temporarily’ and that ‘the governor shall file a writ of special election’ not may. Do you know the difference in meaning between shall and may? Actions that you shall take aren’t optional, actions that you may take aren’t.

    • bmaz says:

      Um, yeah, I indeed do understand legal construction; and, since you are such a whiz bang, perhaps you ought to take it upon yourself to explain your superior knowledge to all the courts, over all the years, that appear to support the reading promulgated here instead of yours. Best of luck with that.