Burris Update: Harry Reid, Emperor!

Submitted by Tully on Sun, 01/04/2009 - 12:54pm

Forget the Constitution and the Rule of Law--Harry Reid asserts that a majority in either the Senate or the House may exclude anyone they want to, for any reason or none.

"WE determine who sits in the Senate. And the House (of Representatives) determines who sits in the House. So there's clearly legal authority for US to do whatever WE want to do. This goes back for generations."

That's a breathtaking assertion of authority, one that boils down to the claim that the majority can completely control membership in either body entirely at their whim, regardless of little things like elections or appointments made under clear Constitutional authority. I note here as I have noted elsewhere, under such a non-standard a majority in either body could easily become perpetual, as the majority could vote to exclude anyone in the minority. Someone remind me again, why do they call it the "Democratic" Party?

Burris' attorney begs to disagree [PDF] with the various assertions offered by Reid for keeping his legally appointed client out of the Senate, and offers as to how the appointment is completely valid regardless of the Illinois Secretary of State's attempt to withold what he is obligated by law to provide--his signature and seal--by a direct citation of Marbury v. Madison.

In case anyone is still wondering about the purity of Reid's motives, his firm dedication to principle versus his dedication to partisan political gain, it's now been revealed that Reid repeatedly contacted Blagojevich before his arrest and attempted to strong-arm his choice of appointees.

Sources say the Senate majority leader pushed against Jackson and Davis — both democratic congressmen from Illinois — and against Jones — the Illinois Senate president who is the political godfather of President-elect Barack Obama — because he did not believe the three men were electable. He feared losing the seat to a Republican in a future election.

Blagojevich spokesman Lucio Guerrero confirmed that Reid (D-Nev.) and U.S. Sen. Robert Menendez (D-N.J.) — the new chief of the Senate Democratic political operation — each called Blagojevich’s campaign office separately Dec. 3. Sources believe that at least portions of the phone conversations are on tape.

Even granting Reid the sole motivation of "electability," one does notice common factors among Jackson, Davis, Jones, and Burris, the appointments to which Harry Reid was so opposed. Something that distinguishes them from Duckworth and Madigan, the two people Reid favored.

Eating our own....

One data point leads to speculation, but four data points begin to form a trend, and six provides some distinctive criteria. No black men wanted. Just white women. Reid thinks they're more "electable," despite recent events involving a certain Senator from Illinois, one who by some coincidence managed to get elected to that seat, and then upgraded considerably via election. No matter how you slice it, Reid's continued and repeated objections to black male Senatorial appointments have a consistency that's very hard to ignore. (I'd also note that Reid's current insistence that no Blago-made appointment would be acceptable bears overtones of Bills of Attainder, something else he might want to consult the Constitution about.)

In the meantime, it seems that Obama's pick for Secretary of Commerce, Governor Bill Richardson, is pulling out, citing a pending investigation of business dealings.

We're gonna need more popcorn for this circus.

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Pelosi's glad she doesn't call much...

Submitted by Maxtrue on Sun, 01/04/2009 - 2:08pm.

Isn't Reid just being consistent? The transcripts will make a best seller. With a forward by Fitzgerald.

So let me get this straight...two of the four (besides Dodd and Obama) who teamed up on HRC would have been problematic as President? Imagine the disaster if Edwards or Richardson got in. And Dodd? Maybe the Press would have forced him to reveal the terms of his mortgage. Could he have really beaten McCain?

These are the people who swayed the primary...LOL

It was this team that screwed Michigan and Florida.

Again, kudos for Obama avoiding any splatter......

Watch as he throws another under the bus when Burris arrives......

Tully, I see you have avoided posting the latest on a recent donation made to the Clinton Fund after Hillary made contact with donor. I guess the other shows are more entertaining.

I "avoid posting" on millions

Submitted by Tully on Sun, 01/04/2009 - 2:39pm.

I "avoid posting" on millions of things a day, Max. Now if you cared to provide a (very) substantial salary for posting more.... :-)

Note the remainder of Reid's comments as linked. He also says there's "room to negotiate." IOW, he is doing what Blago is accused of doing--"selling" the seat--but with different motives.

Of course, I was only kiddin,

Submitted by Maxtrue on Sun, 01/04/2009 - 4:20pm.

Of course, I was only kiddin, but you did have a long streak ripping the Clintons last year. Hu remembers? We do all know you are an equal opportunity ripper.

Wasn't Obama planning to have his big meeting with Congressional leaders Monday? Isn't Burris showing up Monday? Now how close does he want to be near the Senate Floor?....LOL.

"We" are going to the Senate

Will Burris refer to himself in the third person when he takes the oath?

Seems that way.

Submitted by Rafique on Sun, 01/04/2009 - 8:13pm.

IOW, he is doing what Blago is accused of doing--"selling" the seat--but with different motives.

You know what, I didn't Reid could get any more bass ackwards in his leadership, but can someone explain to me why this fool hasn't been outsed yet?

And no, Tully, the pattern cannot be ignored. Reid has some explainin' to do.

Interesting how the chorus

Submitted by Simon on Sun, 01/04/2009 - 3:08pm.

Interesting how the chorus keeps claiming that this authority is well-established and yet can't cite a single example of its exercise, or a case suggesting it exists. At what point is the media going to call them out? "Such as?" ought to be the reply to the quote from Reid.

After the honeymoon.... or

Submitted by Maxtrue on Sun, 01/04/2009 - 4:22pm.

After the honeymoon....

or when they grow some balls.

And if Harry Reid answers for the Chorus....

Submitted by Maryland Conservatarian (not verified) on Tue, 01/06/2009 - 4:12pm.

...then he'll probably reference Hillside Dairy since that's apparently the only Supreme Court case he is aware of.

As a legal matter...

Submitted by Pat on Mon, 01/05/2009 - 9:44am.

As a legal matter, approach the question of the Senate's power to refuse to seat Burris by asking a simple question.

If the released tape recordings revealed an explicit, money-for-appointment deal cut between Blagojevich and Burris, could the Senate refuse to seat him? If the answer to that question is yes, then the same answer must apply to the current situation.

The Constitution provides that: "Each House shall be the judge of the elections, returns and qualifications of its own members..."

The Constitution also provides each House with the authority to expel its own members: "Each House may determine the rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two thirds, expel a member."

As to qualifications, the only Constitutional qualifications for being a Senator are that: "No person shall be a Senator who shall not have attained to the age of thirty years, and been nine years a citizen of the United States and who shall not, when elected, be an inhabitant of that state for which he shall be chosen.

There's no language in the Constitution imposing a qualification that the selection process be bribe-free. If the Senate has the power to decline to seat someone on the basis that they bribed the governor for the appointment, then it has the power to decline to seat someone for any other reason it, in its sole opinion, deems fit. In this case, the Senate Democrats, on the whole, appear to have determined that any appointment by the corrupt Blagojevich bears the taint of his efforts to sell the seat; not as a flaw of the person appointed, but because Blago's corruption is so deep and so entertwined with this particular act that no appointment could be free from at least the appearance of corruption.

Should they seat Burris? I disagree with Tully. I think they should stick to their guns. Blago is corrupt. His refusal to resign shows him to be supremely selfish and egotistical, putting (once again) his own personal interests far above the interests of the citizens of Illinois.

If the Senate were to seat Burris only because he is African-American, that is yet another indication that we have certainly not entered the "post-racial" realm with the election of Obama. The Senate Democrats announced before any selection had been made that they would refuse to seat any Blagojevich appointee. To reverse course simply because Blagojevich appointed a black man would be profoundly wrong on many levels.

I suppose that one could - as

Submitted by Simon on Mon, 01/05/2009 - 10:33am.

I suppose that one could - as Akhil Amar did in his recent Slate piece - characterize an appointment as an election with a constituency of one. If so, and if the power to judge an election includes the ability to void one that the Senate determines to have been corrupted, I suppose Burris could be excluded. On what basis do we conclude that the power to judge an election extends to judging an appointment pursuant to the 17th Amendment or even the unamended Art. 1 § 3?

Simon, do you agree...

Submitted by Pat on Mon, 01/05/2009 - 10:40am.

Simon, do you agree that whether there was or was not a bribe for the seat, the same rule applies? That is, if Blago had appointed someone who paid him a bribe for the seat, must the Senate seat him?

I think so, yes. The Senate

Submitted by Simon on Mon, 01/05/2009 - 11:01am.

I think so, yes. The Senate can judge the qualifications of Burris, and the return of his appointment (which power extends to determining whether he was actually chosen by the Governor, and arguably, to whether the state legislature had in fact authorized the governor to make such appointments), both of which are dead ends in this case. Unless an appointment counts as an election, and the power to judge the election would reach corruption issues, the Senate would lack power to exclude Burris even if there was evidence that his appointment was bought.

Then you endorse the

Submitted by Tully on Mon, 01/05/2009 - 10:51am.

Then you endorse the "above-the-law" no-standard standard, Pat? The Senate and/or House can exclude whomever they wish by a simple majority vote, for any reason or no, regardless? Where the standard is no standard, there is no standard. The Ultimate Private Club.

So, if it can be shown to be a corrupt appointment, he can be excluded, and if there is no evidence at all of a corrupt bargain, he can likewise be excluded. IOW, they can exclude for any reason or none, at their whim. Lydford Law! The Red Queen would approve. See above, re: majoritarian "whatever we want" standard for joing The Club.

In all cases of refusal to seat in the Senate that I could find, one of two things was involved. Either there was a dispute about the "right to appoint," which is not the case here, or there were charges applying directly to the appointee, not the appointer. Which is not the case here. Show me certified dirt on Burris, and you might shift me. Lacking that, the Senate is denying the Constitutional authority of a state governor to make appointments, and depriving the state of Illinois of its chosen representation in the Senate. Autocracy.

Theodore Bilbo got hearings, and the refusal to seat him had some basis in actual findings of corruption, not simple allegations and the application of attainder principles. (He died before a final decision.) Frank L. Smith got hearings, which found well-documented corruption in his campaign. Lee Mantle was appointed by the governor pre-17th, when that power was held by the legislature (which had failed to appoint). Etc.

I have no quibble with the ability of the Senate to expel members with a 2/3rds vote--after they are seated. But we're not talking about an expulsion, so that's an irrelevant point. I further note that the accused all got hearings in such cases, that only fifteen Senate members have ever been expelled, and that every single one of those expulsions were essentially for treason.

If Burris can be shown to be corrupt or have been appointed as a result of corruption, fine, don't seat him. That hasn't been shown.

Certified dirt?

Submitted by Pat on Mon, 01/05/2009 - 11:00am.

That's the question I'm asking specifically, Tully. If there were "certified dirt" on Burris, do you believe the Senate has the authority to refuse to seat him? If so, under what constitutional authority do they do so?

The historical standard was

Submitted by Tully on Mon, 01/05/2009 - 11:03am.

The historical standard was demonstrated actual corruption in gaining the seat, Pat. Show a corrupt placement, I'm fine with not seating him. Allege it and don't show it, and you are slandering and punishing someone for crimes not shown, and flouting the established process. That punishes not just Burris, but the state of Illinois and any other states later harmed by the precedent.

It seems to me that you are advocating that autocratic no-standard standard. Are you?

No, I'm asking a legal question...

Submitted by Pat on Mon, 01/05/2009 - 11:08am.

You are refusing to answer my question, Tully. What is the legal basis for denying a seat based on demonstrated corruption? Which language in the Constitution do you rely upon for the assertion that the Senate could refuse to seat a corrupt replacement? Stop dodging the question.

I'm not dodging the question,

Submitted by Tully on Mon, 01/05/2009 - 11:15am.

I'm not dodging the question, Pat. At least, no more than you are dodging mine. Do you advocate the no-standard standard?

Yes, the Senate can judge elections on the basis of corruption. But historically, they have done so on actual evidence of corruption in elections. There is none in the Burris appointment--he was not elected. Under Powell there is no doubt that he is qualified. That leaves "returns," the report from the state to the Senate that the appointment was legally made. As it apparently was. No evidence of corruption in the appointment of Burris has been offered that I am aware of. Are you aware of any?

Can you define any way in which your interpretation is NOT a completely arbitrary no-standard standard, a do-anything-we-want rule that could be used without restraint other than a majority vote of the Senate?

I asked my question first, and it's important

Submitted by Pat on Mon, 01/05/2009 - 11:25am.

I'm not going to answer your question until you directly answer mine, Tully, because I asked it first. My question is not based on "should" but on "can." CAN the Senate legally refuse to seat a gubernatorially-appointed fill-in Senator (under the provisions of Art. XVII) if there is evidence that the appointment was made for corrupt motives?

It's a yes-or-no question, Tully. I'm not concerned with the precedents of the Senate in election challenges. I'm not concerned here with the Senate's motives or the politics of it all. IF the appointment was corrupt, but duly made by the governor pursuant to his lawful authority, could the Senate refuse to seat him, legally? I'm not asking whether you would have a problem with it or not, just whether they legally could do so, and what the basis for so doing would be.

UPDATE: The reason my question must be answered first is that one cannot turn to questions of should or shouldn't until you establish the legal basis for can and can't. After we establish the legal framework under which the decisions are made, THEN we can turn to whether a proposed exercise of authority or discretion should or shouldn't be made.

Beg to differ...

Submitted by Tully on Mon, 01/05/2009 - 12:52pm.

I'm not going to answer your question until you directly answer mine, Tully, because I asked it first.

Ah, the or-else bludgeon technique. Only by sleight of rhetoric did you "ask first," given that I mentioned repeatedly above the no-standard standard being asserted by Reid, and that it constitutes the core of the question that YOU are refusing to answer unless and until you can lead me into your own constructed hypothetical first. To wit:

"WE determine who sits in the Senate. And the House (of Representatives) determines who sits in the House. So there's clearly legal authority for US to do whatever WE want to do. This goes back for generations."

And I did so before you offered any hypotheticals, and you have most notably not addressed it while trying to argue around it. You're gonna pull the Alex Trebek and claim that I didn't put it in the form of a question first? Heh. Please. Try again. Nonetheless, I'll play into your attempt to redefine and redirect away from Reid's naked assertion that you clearly do not want to address.

I would say NO to your first question as asked. You have not specified any actual evidence of intent or actions, but beg a response on unspecified evidence of motives, a somewhat psychic guessing game. One can assign almost anything as "evidence of motive." But motive does not equal intent does not equal action. Motive is not a crime--especially in the halls of Congress! Witness the ease with Reid's motive in leaning on Blago pre-arrest can be cosntrued in more than one way. And your first question is NOT the same question you subsequently ask, so you asked more than one question, then demanded a single yes/no answer. Please.

IF the appointment was corrupt, but duly made by the governor pursuant to his lawful authority, could the Senate refuse to seat him, legally?

That one I would answer YES, but assert it would still require more than mere allegation of corruption without any investigation, or assertion of some sort of political attainder-by-association as being sufficient, or there is no effective standard at all, just the completely autocratic whim of the majority. You know, Reid's no-standard standard that you have refused to address?

You're just wrong....

Submitted by Pat on Mon, 01/05/2009 - 1:37pm.

Thank you for finally answering my question. You agree that the Senate has the power to refuse to seat someone lawfully appointed by the governor, if there is evidence ("more than mere allegation of corruption, or assertion of some political attainder as being sufficient") that the appointment was corrupt. You do not identify the Constitutional language upon which you rely, but I will assume until you clarify that this power would be found in the grant of authority to the Senate to judge the elections and qualifications of its members.

You say "That one I would answer YES, but assert it would still require more than mere allegation of corruption" (emphasis added). What requires it? Common sense? Fair play? The rules of the Senate? Some clause of the Constitution?

Simon takes the defensible position contrary to yours, that the Senate's authority to judge the qualification of its members extends only to allow them to refuse the seat if there is some defect in the appointment itself, that is, if the person purporting to make the appointment were not actually the governor, etc. If (as has happened on rare occasion) there were two claimants to the governorship, or perhaps if the governor had purportedly appointed 2 different individuals, then and only then could the Senate determine which appointee was qualified. But that question hinges only on fairly objective criteria, and does not require any examination into the motives or reasons which led to the appointment.

I believe that if you concede the point you conceded, then one must conclude that the Senate has the Constitutional, legal authority to decline to seat an appointee for reasons which it deems fit. To conclude otherwise, you'll need to point to some source of authority for the Senate to refuse to seat the individual which simultaneously sets forth the limited criteria by which it can refuse to do so.

The question then becomes what criteria the Senate SHOULD follow prior to refusing to seat an appointee. Assuming you are making this normative argument (as opposed to a legal argument), I understand you to be saying that the Senate should only refuse to seat an appointee where there is some level of evidence that the specific appointee was chosen corruptly.

Here I must ask for more clarification of your proposed rule, because of your chastisement of me for slipping in the word "motive." Is it your position that the appointee can be denied seating only if there is good evidence that the appointee participated in some corruption? What if the appointee is personally entirely innocent and unaware of wrong-doing, but there is strong evidence that somebody else paid the governor to appoint that person? If the Senate is limited to judging the individual appointee, rather than the appointment process, then under your rule, the Senate would have to seat the individual despite the corruption of the process.

But perhaps your proposed rule is broader, and that the Senate should refuse to seat an appointee if the specific appointment is corrupt, regardless of the guilt or innocence of the appointee in that corruption. If that is so, then you must concede that it is legitimate for the Senate to pass judgment (by not seating) on the process of the appointment, without necessarily passing judgment on the appointee.

And if that is the case, then I don't see any principled barrier to the Senate concluding that the appointment process has been so tainted by the deep and manifest corruption of the appointer as to call into question ANY appointment made by that appointer.

This is, contrary to the words you've tried to put in my mouth, not at all calling for an absence of standards, that the Senate majority should be able to decide whom to seat or not seat at its whim. I myself believe that Blagojevich's blatant attempts to sell the Senate seat cast a taint over the entire process, because the entire process is based on his own judgment. Blagojevich has demonstrated that he is corrupt, if the allegations of the charges filed are correct. I believe that that corruption is sufficient for the Senate to determine that no appointment made as a result of that corrupt process (note that I am saying that the PROCESS is corrupt, not that Burris is) is "qualified" to be seated as a United States Senator. That's very, very different from saying that the whims of a transient majority should be able to refuse to seat an appointee for any reason at all.

Yet that call is entirely

Submitted by Tully on Mon, 01/05/2009 - 1:57pm.

Yet that call is entirely subjective as you frame it in your hypothetical, and in the hands of the Senate majority, making your distinctions ones without distinction. Note that the Senate has not made any such conclusions at this point--no hearings have been held, no evidence submitted, no votes taken, no motions made to defer credentials to committee, etc. The ONLY standard being employed at this point is the will of the majority and the Red Queen standard, and that only as expressed through the actual actions and directions of the Majority Leader and his party cohorts. Once again re-quoting same:

"So there's clearly legal authority for us to do WHATEVER we want to do."

Not a hypothetical, not a fine-point deconstruction of potentials, but a plain statement, utterly encapsulated by the word WHATEVER. Anything, anyway, anyhow. So, agree or disagree with Reid's sweeping assertion of omnipotence in this regard? Your own words:

If the Senate has the power to decline to seat someone on the basis that they bribed the governor for the appointment, then it has the power to decline to seat someone for any other reason it, in its sole opinion, deems fit.

I fail to see any distinction between that and "Reid's Rule" as stated above.

[PS--I should not need to point out to a lawyer that you really did ask two separate questions, so please spare me the umbrage on that point. If I put any words in your mouth by hyperbolic extension, my bad, and not intended. But I still do not see ANY objective standard being employed in this case that falls outside "Lydford Law." I did not propose a rule--you tried to box me into one when I protested the apparent total lack of any such other than "because we want to." If I was maneuvered into that trap, my bad for skipping law school. I accurately recounted other cases of refusal to seat, and none meet the specifics of this case. If you know of one, please, enlighten me.]

Well...

Submitted by Pat on Mon, 01/05/2009 - 2:24pm.

Well, if you concede (as you do) that the Senate could refuse to seat Burris if actual corruption were involved, then yes, I agree that in this case, there is indeed legal authority for the Senate to do whatever it wants to do. And I will continue to believe that until you point me to some provision of law which embodies the standard you desire to set.

You claim some sort of legal limit on the power of the Senate in this regard, but you have continued to decline to identify the source of that limit. You disagree with Senator Reid's statement regarding the legal authority of the Senate, but you cite no source of law to dispute him.

Once again, upon what LEGAL authority do you base your LEGAL conclusion about the Senate's LEGAL powers?

Responding to your P.S.

Submitted by Pat on Mon, 01/05/2009 - 2:30pm.

But you did propose a rule. You proposed that the Senate was legally limited regarding the grounds that it could use to refuse to seat a Senator. You said clearly that you believed that Senator Reid was legally incorrect regarding the Senate's legal authority. I pointed out that if you take the position that the Senate has no legal authority to refuse to seat Burris, then you must also take the position that the Senate would have no such authority EVEN IF the appointment of Burris was actually corrupt. You disagreed (and said as much in your initial post), saying that you believed the Senate legally COULD refuse to seat an actually corrupt appointment, but that it had no legal authority to refuse to seat someone in the absence of some level of evidence in that appointment itself.

You have not yet identified any legal source for that rule or that limitation on the Senate's power.

WRONG. Please re-read the original post

Submitted by Tully on Mon, 01/05/2009 - 3:11pm.

You disagreed (and said as much in your initial post), saying that you believed the Senate legally COULD refuse to seat an actually corrupt appointment, but that it had no legal authority to refuse to seat someone in the absence of some level of evidence in that appointment itself.

WRONG. Please re-read the original post and show where *I* made any such assertion of a rule. You won't find it, as I did no such thing. I noted what Reid had said, and what Burris' attorney responded, and noted the logical ramifications of such a sweeping authority as that claimed by Reid.

In my first reply to you I noted the historical basis of refusals to seat, and that Burris' case did not fall into those two categories--I proposed no rule, made no legal assertions whatsoever other than the obvious ones that Blago's 17th right to appoint was being effectively denied and the people of Illinois were being deprived of a voice in the Senate--things that are a little difficult to deny. I made no other legal assertions. I also said that the two historical conditions did not seem to apply, and that therefore it would be tough to shift my perception of a no-standard standard being employed. Which is not a legal assertion of the legal authorities, just of what was being claimed. And I asked you again, did you endorse the no-standard standard?

Without answering you again tried to badger me into your hypothetical box, and I reiterated that I was citing the history and the effects of the no-standard standard, and I asked you directly--again--if you were advocating the no-standard standard, and it devolved from there into your insistence that I was to come up with some legal authorities to prove a rule I had not proposed but that you chose to infer--now that you had persistently diverted the discussion into the legal arena and badgered me into a personal opinion of what was right.

Yeah, I can see the box. So can anyone reading upthread, in order. You are actively misrepresenting what I said, and the order in which it was said, and attempting to minimize your own vehement and insistent "boxing" of the discussion that was clearly meant to force statements you could use to argue your legal point, regardless of what I was actually saying. I readily concede you're a better lawyer than I. :-)

You still have not provided an unqualified answer to MY question. Do you agree or disagree with Reid that "there's clearly legal authority for us to do WHATEVER we want to do"? Yes or no?

And if you agree with Reid, do you find that acceptable in a purportedly democratic society?

Well, no...

Submitted by Pat on Mon, 01/05/2009 - 3:27pm.

First, you are correct that you did not say in the initial post that the Senate could refuse to seat an actually corrupt appointee. My bad. However, in your very first response to my initial comment, you said: "Show me certified dirt on Burris, and you might shift me." That suggests a willingness, at least, to entertain the idea that the Senate had lawful power to refuse to seat Burris, if there was actual corruption involved in his appointment.

Beyond that, however, you are wrong. You took a legal position by claiming that Senator Reid's assertion of legal authority was incorrect.

If you don't want to argue over the law, but want to argue over what the Senate should or should not do, fine. But you chose to attack Senator Reid over an assertion of what the law is, so you need to identify what law you think applies. As I have repeatedly noted, I think the claim that the Senate would have no choice but to seat Burris even if there were direct evidence of a corrupt appointment would be legally consistent, and might indeed be correct. My initial comment was aimed pretty directly at pointing out the LEGAL consequences of taking the position that the Senate has no legal authority to refuse to seat Burris.

To directly answer your question, I believe that IN THE CONTEXT OF THIS CASE, yes, there is legal authority in the Constitution for the Senate to decline to seat Burris. It also has the authority to choose to seat Burris. Thus, Senator Reid is correct that there is legal authority for the Senate to choose to do either of those things. As the case you cited of Frank L. Smith shows, the Senate has in the past declined to seat an appointee based on reasons other than the lawful authority of the appointer to make the appointment. As I think I've demonstrated pretty clearly, once you've decided that the authority to judge the "qualifications" of its members extends beyond the mere ministerial effort of making sure that the appointment was actually made by a duly-elected governor, then there's no real legal limitation on the authority of the Senate to make that seating determination.

As to "boxing," that's also called focusing the issue. I have been trying to separate the LEGAL question from the policy question.

As to what standards they should follow in exercising their discretion in this regard, I have avoided directly answering your question because one must establish what the LEGAL requirements are first. Policy concerns are immaterial if there is no legal authority.

You keep saying that Reid's blanket statement regarding the Senate's legal authority is incorrect, but you identify no actual law to support your claim. I'm not the one making a personal claim of "what was right." You're the one insisting that what you think is right MUST be the law, without actually looking at any law to gain support for your legal arguments. You laid into Reid for being wrong about his statement of the Senate's lawful authority; please cite the provision of the Constitution or the rule of the Senate upon which you rely.

Pat, you're the one forcing

Submitted by Tully on Mon, 01/05/2009 - 3:58pm.

Pat, you're the one forcing the legal arguments from the get-go here. What you call "focusing" others would call forced discussion hijacking.

But you chose to attack Senator Reid over an assertion of what the law is, so you need to identify what law you think applies.

In a word, b******. See previous. I laid into Reid for naked sweeping autocracy, cited the relevant history, and asked you your opinion of his statements. You're continuing to actively misrepresent what I have actually said, relying on statements made after repeatedly badgering me into offering personal opinions based on historical precedent in response to questions you forcibly inserted into the thread and vehemently and repeatedly insisted I address, and then insisted on forcing said personal opinions based on historical precedent through a legal filter of your own construction for your own purposes--apparently the whole point of the exercise on your part.

Non serviam, dude. If you want to address the contra legal arguments and opinions, you're far more capable than I of tracking them down, and certainly capable of making any points on dueling authorities without a straight man. Please stop trying to forcibly steer me into appearing to make them just so you can swat at them.

So you have no idea...

Submitted by Pat on Mon, 01/05/2009 - 5:29pm.

So you have no idea whether Senator Reid is correct or incorrect, as a matter of legal authority. Ok, no problem. In highlighting in bold his assertion of his legal authority, and calling it "breathtaking," you weren't disputing his legal conclusion. Gotcha.

I actually do have some grasp

Submitted by Tully on Tue, 01/06/2009 - 10:44am.

I actually do have some grasp from reading through the opinions of other lawyers who have posted some fairly extensive thoughts on the matter, I am simply refusing to be actively and aggressively sandbagged into a legal argument with a lawyer apparently looking to prove that he's a better lawyer than I am--which is not all that terribly difficult, as I am not a lawyer. I see that the dean at UC Irvine Law, a known BDSer no less, seems to agree with my general line of reasoning and provides some citations of his own from Powell that certainly seem relevant. Perhaps you can slug it out with him.

As to the substantive aspect of what I was addressing with the post, I sincerely hope you find Reid's assertion of essentially unlimited majority authority disturbing on pretty much all levels other than hypothetical nitpickery.

Sheesh, Tully....

Submitted by Pat on Tue, 01/06/2009 - 11:00am.

How many times have you chastised a commenter who refused to address or support a point other than by a vague: "see the links I included"? Give me a break. You highlighted the portion of his statement making a legal conclusion and labeled it "breathtaking." You didn't merely report that others disagreed with it, you injected your own opinion of it. I'm not trying to "outlawyer" you, I want you to clarify what you said and defend it.

As I stated, I have no legal quibble with Senator Reid's statement in the context in which he said it. I don't at all read it as saying that the Senate can refuse to seat anybody it wants to on a mere whim. I read it as saying that, in the context of the 2 options the Senate currently has (seat Burris or don't seat Burris), there are precedents which support whichever choice the Senate makes. Are you claiming he meant it more broadly than that? I just don't see it in the language you quoted.

From the beginning, I've tried very hard to get you to separate out the LEGAL question (what the Senate constitutionally can and cannot do) from the POLICY question (what they SHOULD do, within the legal constraints). You refuse to separate the two. This all makes a very big difference. If the Senate has no legal authority to refuse to seat Burris, then they have no authority even to hold hearings to investigate whether the appointment is corrupt. If the Senate DOES have legal authority to refuse to seat Burris (for reasons other than whether the governor actually made the appointment), then the Senate has a right to delay seating him while it holds hearings to investigate the appointment, to make its own determination as to whether the appointment was corrupt or not, or if there are some other grounds to refuse to seat him.

But it's clear now that you can't or won't support your claim, instead engaging in ad hominem attacks against me and my motives for my post.

LOL. Playing the accusatory

Submitted by Tully on Wed, 01/07/2009 - 9:39am.

LOL. Playing the accusatory and adversarial prosecutor to the end, eh? See Tully's Corollary. Back a claim I never made, that is only evidenced through your hostile-witness forcings? I've already conceded that your skills in that regard are superior. I once again point you at the proper weight class for your desired debate and defer to Chemerinsky and Dellinger (like Chemerinsky, a liberal Democrat), who both find the "elections, returns, and qualifications" clause broad-construction argument weak at best, and believe it does not even remotely overcome the 17th Amendment and Illinois law.

From the political POV, which is what *I* was discussing, the no-standard standard is also weak at best. Reid and Co. are backing off it with alacrity as the pressure comes to bear from many many MANY quarters, dodging for procedural stalls that allow time for face-saving deal-cutting instead. Both Chemerinsky and Dellinger echo what I have said about dangerous precedents and the claim of absolute membership authority by Reid, the prime subject of this political post, and the point where reality actually meets the road. Our nation's pols are only truly in favor of guilt by association (or peripheral attainder, or whatever one could wish to call it) when it stays a fair distance from or favors them, and right now the guilt by association is coming down in very political lines, not legal ones. They want to stand out from under.

I'm willing to back my take with cash ($50, charity of choice) that Burris WILL be seated IF he persists and the appointment is not withdrawn from the Illinois end on some quibble about White's certification.

(Update: Damn. Ten minutes later and the sucker bet becomes moot. Doubt you'd have taken it anyway, which was the point.)

You're the one...

Submitted by Pat on Wed, 01/07/2009 - 10:11am.

You're the one who started in with ad hominems Tully, not me.

I posted a simple comment explaining that the best way to consider the LEGAL question was to ponder if the Senate had the authority to deny the seat if there were clear evidence of corruption in the Burris appointment itself. You then took it upon yourself to jump down my throat, demanding that I defend the "no-standard standard," which I had never once advocated, while first refusing to answer my question, then answering it, then backing out of your answer by characterizing it as "hostile-witness forcings."

I never took a position on whether Burris WOULD be seated, and I certainly wouldn't have taken that bet to begin with, because Senators are, as a lot, particularly spineless creatures. But what they were likely to do and what they should do are separate questions, both of which are distinct from the legal issue I raised.

And I'm just not buying your ridiculous assertion that you were never taking some position on the law, when the thrust of your post was to attack Reid's claim about the Senate's legal authority.

Yada yada. I'll pass on the

Submitted by Tully on Wed, 01/07/2009 - 10:34am.

Yada yada. I'll pass on the diversion of who insulted whom first. As previously and repeatedly noted, anyone all that interested can assess that for themselves. You think you're right, I think I'm right, everyone else probably thinks we're both nuts, and further shouting won't make any difference.

As for the rest, it seems to amount to a claim on your part that no one is entitled to comment on anything that even remotely impinges on any legal question (which means everything everywhere all of the time) without a legal scholar in their back pocket, Pat. That no such opinions can be relevant at all in any context without that establishment of legal authorities. Once again, ref: Tully's Corollary. I don't need a law degree or copious footnotes to note the appalling ramifications of such a sweeping claim as Reid's. Those ramifications are appalling whether or not the claim is true (or even just arguable) under the law, no? Is it illegitimate to think that? Can it only be appalling if Reid is right, or only if Reid is wrong, or can it be an appalling thing regardless? Can no one find it appalling without a legal scholar in their back pocket to tell them whether or not it's as legally correct assertion?

I take the position that it's appalling, regardless, not conditionally appalling pending an interpretation of the law. Sorry you missed that.

Now you sound like Brian...

Submitted by Pat on Wed, 01/07/2009 - 10:59am.

Who cares what the process IS, let's just act on how we feel in this one particular instance.

As I've noted before, and you normally agree with me, if you're proposing some rule (and you were, or at least expressing your opinion that the rule proposed by Reid was "appalling," which is no different from claiming that it shouldn't be the rule and some other rule should be), then you must look at the consequences of that rule and what it may mean if applied in other cases beyond the current one.

I pointed out that if you adopt a more limited view of "qualifications," in the relevant constitutional provision, then you may be stuck with a rule which requires the Senate to seat an appointee EVEN IF there were blatant corruption involved with that particular appointment. You chose not to discuss this potential consequence, in favor of ranting about Reid's statement being appalling. That's not demanding legal scholars, that's looking at the potential consequences of what you're saying.

It also applies more immediately. If the Senate DOES have the power to refuse to seat an actually corrupt appointment, then it follows that the Senate can investigate to determine whether actual corruption with that particular appointment existed. The Senate has no obligation to act or not act based merely on allegations made by a prosecutor. If it has grounds to believe that an appointment may be corrupt, and if it has the power to refuse to seat a corrupt appointment, then it would have the power to conduct its own investigation, including subpoenas and sworn testimony, to determine whether the appointment was corrupt.

But do forgive me for interrupting your self-righteous "REID IS A BIGOTED IDIOT" rant with pesky details and an examination of the broader issue.

Nope.

Submitted by Tully on Wed, 01/07/2009 - 11:14am.

and you were...you must look at...

Nope. I wasn't, and I don't must. One is not obligated to write a comprehensive textbook to opine on a simple point.

I do urge you to post on your take of Reid's claim, as it will make good and educational reading. For the rest, we've reached the "yo mama" stage, which is the end of it. See your email.

I would add...

Submitted by Pat on Mon, 01/05/2009 - 3:39pm.

I would add that the letter from Burris' lawyer does not in fact address any of the legal questions connected to Reid's statement. It addresses only the issue of whether Burris has actually been appointed by the governor to the vacant seat, notwithstanding the refusal of the Secretary of State to certify the governor's signature on the appointment. The letter does not make any legal arguments regarding the authority of the Senate to seat or not seat such an appointee.

Yep. Either the article has

Submitted by Tully on Mon, 01/05/2009 - 4:03pm.

Yep. Either the article has been truncated since I first linked, or I failed to link the longer article in which Reid's office claimed that White's refusal to sign & seal the papers would legitimize refusing to seat Burris on the grounds that no legitimate "return" had been made. Which is indeed what Burris' attorney was addressing, and what I was referring to when I included it.

Which does not negate the sweeping autocratic claim made by Reid, nor obligate me to prove Reid's assertion either legally wrong or right in order to condemn it as being sweepingly autocratic, and implicatory of some very unsavory logical extensions.

And it appears at this time that, acting at Reid's direction, the Sec'y of the Senate has refused to accept Burris' credentials on the grounds they were not signed by White.

At risk of ganging up --

Submitted by Simon on Mon, 01/05/2009 - 11:40am.

You say that "the Senate can judge elections on the basis of corruption ... [and] historically, they have done so on actual evidence of corruption in elections." When? I don't see anything in Riddick detailing the Senate having done so.

Frank L. Smith, for one,

Submitted by Tully on Mon, 01/05/2009 - 12:36pm.

Frank L. Smith, for one, refused his seat for electoral corruption (the man he was elected to replace died between Smith's election and swearing-in, the gov appointed Senator-elect Smith to cover for that month, the Senate refused to seat as appointee and subsequently as elected Senator). Theodore Bilbo for another, refused his seat on re-election for accepting bribes as campaign donations. (Bilbo's virulent racism was another reason, but not an official one. Bilbo was sent home to die while his credetials sat in committee for months. He died before they came out of committee.) Both already cited as examples.

Both refused seating on the basis of demonstrated corruption on their parts. That Riddick may fail to incorporate them as specific precedent does not erase them from history.

I don't think that's quite

Submitted by Simon on Mon, 01/05/2009 - 11:05am.

I don't think that's quite what Pat's saying - I read him to be saying that having said that they'll refuse to seat a Blago nominee, and claiming the power to do so, they shouldn't reverse course just because of the race of the person who eventually got the nod.

I got that, Simon. But I

Submitted by Tully on Mon, 01/05/2009 - 11:07am.

I got that, Simon.

But I don't agree with the no-standard standard in the first place, find the stated reasoning of the Senate Dems to be without standards other than political whim, and the evidence most strongly suggests that Majority Leader Reid's motivations did indeed key at least somewhat on race.

Gee, how about...

Submitted by Tully on Mon, 01/05/2009 - 10:59am.

If the Senate were to seat Burris only because he is African-American, that is yet another indication that we have certainly not entered the "post-racial" realm with the election of Obama.

Gee, how about if they were to seat him because he is the legally and Constitutionally appointed representative of the state of Illinois?

Seems to me from Reid's prior actions that you've got an inversion in your reasoning there. Reid was actively trying to keep African-American males out of that seat before the Blago revelations, based (the claim) on their "electability." Meaning that despite recent history he did not consider an African-American male to be electable state-wide in Illinois. Given that history I'd say that Reid's opposition is also tainted, and not in a second-hand fashion like Burris' appointment. The Blago arrest gave Reid the excuse to harden his line on keeping an African-American male (apparently ANY African-American male) out of that seat.

I didn't say anything about Reid...

Submitted by Pat on Mon, 01/05/2009 - 11:02am.

I'm not defending Reid himself in the slightest. I have no idea whether the Senate Democrats had any idea that Blago would likely appoint Burris (or some other black man) prior to signing their letter declaring that they would refuse to seat any Blago appointee. Personally, I doubt that most of the Democratic Senators who signed that letter did so in an advance attempt to forestall the appointment of an African-American to the seat.

And yet that is the actual

Submitted by Tully on Mon, 01/05/2009 - 11:05am.

And yet that is the actual effect, and the list of those Reid attempted to exclude before the Blago arrest suggests that it certainly played a part.

parsimonious take

Submitted by bucyrus on Mon, 01/05/2009 - 12:34pm.

My take is that Reid et al threatened to refuse to seat a Blago appoinment as a preemptive threat to prevent Blago from making the appointment, which some would argue blemishes the party. Since it seems that the senate lacks this authority (at least explicit authority, if not historical or arguable authority), I take Blago's appointment to follow thr form of Dave Chappeklle's Copy Cop parody:

Why? WHY make the appointment when democrats everywhere will move heaven and earth to render it null for the sake of appearances?

Because FV(K 'em, that's why.

This seems like another case where existing law isn't quite up to the task.

In general, I'd prefer that this be handled by the state of Illinois. Frankly, it's their black eye first. But if Illinois can't make it happen, it doesn't trouble me all that much if the Senate finds its way. And if they lack the explicit authority to refuse to seat the appointee but have the authority to expel the same person, then the way they do it doesn't matter that much unless you are a process-worshipper.

Since it has been noted that expulsions have "historically" been limited to treason and the like, I think I can assume that the actual stated rubric is more generalizable, even though it hasn't previously been employed in the implied wider domain.

Leaving aside Blago's obvious corruption, I profess a certain admiration for how he came up with an appointment that has generated maximum democratic vexation. Because apparently the sole objection to the person Blago chose is that Blago made the choice. Thus the conundrum for the process-oriented folks. As someone who tires quickly of lengthy political theater over process principles, I wish they'd just decide that the appointee is OK for the time being, and then let it go.

If more states were smart, they'd come up with a more democratic expedited process for replacing elected officials who move on. Like maybe a 2-stage mail-in election where the first round included all candidates who could collect 10k signatures within a month, and then a run off of the top 3. Either that or let the state legislature pick instead of the governor. Now THAT would be a cannibal feast.

The Illinois legislature

Submitted by Tully on Mon, 01/05/2009 - 2:12pm.

The Illinois legislature should have handled it, yeah. They didn't. They bailed out when the vote came up, and killed it. They decided by not deciding--they punted the ball back to Blago, who ran with it.

The measured thing for the Senate to do would have been to defer Burris' seating pending hearings, and wait out Blago's removal. But they didn't go that route--instead, members of the DEMOCRATIC PARTY (not the Senate itself, mind you) declared that no Blago appointee was acceptable. Period. Regardless. No hearings. No evidence. No vote. No standard but whim and assertion and political attainder.

Worshipping Process

Submitted by Maryland Conservatarian (not verified) on Mon, 01/05/2009 - 2:49pm.

"And if they lack the explicit authority to refuse to seat the appointee but have the authority to expel the same person, then the way they do it doesn't matter that much unless you are a process-worshipper."

well, one way it matters is that it takes a 2/3rd vote to expel. The Supreme Court noted this in their Powell v. McCormack case whee the bottom line became that Congress can expel for actions that they can't refuse a seat over.

That's the trap I see with

Submitted by Tully on Mon, 01/05/2009 - 3:15pm.

That's the trap I see with the no-standard standard. Under that, a simple majority faction could immovably entrench itself--all perfectly within the no-standard standard.

Letting the process play out?

Submitted by Jim M on Mon, 01/05/2009 - 4:20pm.

Would you accept that the Senate does have the right to delay the seating and hold hearings on the issue? You seem to have your biggest problem with the statement that he will not be seated at all. This may open up another can of worms if the Senate has power to subpoena the tapes to see if Burris ever came up in the discussions or to investigate Burris's own financial contributions prior to seating him to see if he is truly as clean as he states he is.

As a part of the Senate process, this would seem to be valid. The real question is what occurs after the hearings are done. Therefore, it does seem to me that his seating could be delayed pending hearings. Am I just whistling Dixie looking for something here?

The process is ongoing, and

Submitted by Tully on Tue, 01/06/2009 - 10:49am.

The process is ongoing, and if you've paid attention the last couple of days you will have noticed that Senate Democrats have privately acknowledged that their real concern is the 2010 electabiity of anyone nominated by Blago. Reid is purportedly ready to seat Burris if he promises not to run in 2010. The claim of "tainted appointment" has absolutely NOTHING to do with any principle outside of the perception of electability, and the desire of party leaders to hand-pick the holder of the seat themselves.

a little harsh

Submitted by bucyrus on Tue, 01/06/2009 - 11:16am.

Well, that's a little harsh. I'm happy to agree that the dems are operating based on concerns about electability. But let's face it, the taint, though not yet proven, seems like it will be pretty demonstrable when all's said and done.

So there there really isn't much if any conflict between concerns about the taint and concerns about electability. They go together. In other words, while we know how much Reid et all are worried about future electability, this doesn't mean they therefore care nothing for the obvious taint. I can dislike Reid quite a bit and still assume he frowns on a straightforward auctioning of a senate appointment as a matter or principle, even though his (and most politicians) actions probably prove that he doesn't extend this principle to more byzantine politican brokerage.

Then again, as we've sort of agreed previously, since they are politicians the principle may be as much aesthetic as anything. Not simply the corruption but the hamfisted execution.

Democrats turn a win into a loss with negoitiations - ok with me

Submitted by Jim M on Tue, 01/06/2009 - 11:56am.

I agree with you on the Democrats goal. Sometimes the right thing is done for the wrong reasons. Of course, Reid has to understand that any deal they come up with is 100% worthless because there is no way they could legally bind Burris from running in 2010 if he wanted to.

Truthfully, it is now a bigger blow to the Democrats if they cave and allow Burris to be seated through negotiation. That only spreads the taint around. The only way for the Democrats to win now is to keep Burris out of the seat. They initiated a MAD scenario.

Using the wrong process, however.

Submitted by Jim M on Tue, 01/06/2009 - 4:47pm.

I will say this, they are using the wrong process to deny him the seat. The Sec of State seal is such a weak argument that it will quickly be dispensed of in the court. They should use the rules to transfer it to the Rules Committee. The Constitutional argument that the Sec of State seal requirement does seem to be a direct violation of Amendment XVII. Referral to the Rules Committee seems to fall under Article I Section 5. There is still a question if they can rightfully maintain keeping him out of the seat. That is what hearings would have to be for.

However, the current method of denial of seating is absolutely unconstitutional.

the wrong process is part of the real process

Submitted by bucyrus on Wed, 01/07/2009 - 7:47am.

I agree that the IL SoS lacks the actual authority to permanently derail the appointment. In that sense it's the wrong process.

But the REAL process being undertaken here is what I guess I'd call a one-day-at-a-time political @ss-covering festival. The IL SoS has bought everyone a week's delay. The secretary of the senate has stood for the senate itself. Collectively, folks i the system are trying to run out the clock with bits and pieces of questionable authority at their disposal.

I think that probably the IL legis didn;'t act forcefully because they lacked the guts or maybe just the will to act forcefully prior to somethings like an indictment. Ultimately as legislators they want even a guy like Blago to get some semblance of due process. That's left Blago still the governor, and still w/the power to act.

Maybe something good will come of all this as states may choose to enact some sort of law that proscribes, curtails, or suspends the acting authority of a state CEO or legislative leader in cases when they fall under some sort of cloud of suspicion. For most folks, you receive at minimum a suspension in such circumstances, but a state governor is in a pretty unique spot in a federalist system. That makes sense to me, that a state legislature has the authority to vote to suspend the governor or one of its own or someone else in a similar position of state power, in order to protect the public trust.

we went throught something similar but lower level here in MA when state rep Dianne Wilkersonw as caught on tape stuffing a bribe into her bra. There was a week or so of sturm and drang over whether she would resign. Seems to me that in such instances the rest of the government ought to be able to at least suspend their powers of office.

Brian, the Illinois

Submitted by Tully on Wed, 01/07/2009 - 10:12am.

Brian, the Dem majority in the Illinois legislature backed off the vote because Reid asked them to. He was afraid that they would lose the seat, same reason he didn't want any Blago appointee in the seat. Unfortunately for him, that left no real alternatives as long as Blago remained in office. Blago has no reason to cut a deal with Reid, or with anyone but the prosecutor and/or potential witnesses. Shot himself in the tuchis, Reid did.

All of the noise was time-buying to cut a face-saving deal. But because Reid acted idiotically and went over the top, it wasn't HIS face anyone was trying to save. Burris' seating was inevitable as long as he stuck to his guns.

Well, we said the Dems needed a Senate Majority with better skills. But they kept Harry.

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