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Blagojevich Appoints Roland Burris as Senator, Senate Democrats Apparently Threaten Not To Seat Him:

See this Bloomberg story for more on the matter, and on Burris. See here for Senator Reid's statement that says Burris "will not be seated by the Democratic Caucus," which I assume means the Democratic Caucus will vote not to seat him, rather than that they'll seat him in the Senate but just won't let him join the Democratic Caucus within the Senate.

If there's some evidence that Burris's appointment was indeed the result of a bribe or some illegal maneuvering, then indeed the Senate can refuse to seat him. But if there is no such evidence, then for reasons I noted earlier, I think their position is legally unsustainable, given the Supreme Court's Powell v. McCormack precedent. And if Burris is indeed clean, then I don't see much of a political upside to a Democratic refusal to seat him, either.

UPDATE: Prof. Brian Kalt (Concurring Opinions) agrees with me on the legal issue.

Some commenters also suggest that the constitutional issue may be different because Burris is being appointed, not elected (whether by the people or, as before the Seventeenth Amendment, by the state legislature). I don't see any basis in the text of the Constitution to treat lawfully appointed Senators differently from lawfully elected ones, except that the provision about "Elections [and] Returns" would presumably be read as covering an inquiry into the lawfulness of the appointment — e.g., whether it was the result of a bribe — just as it would normally cover an inquiry into the lawfulness of the election.

But if the argument is simply that Blagojevich is generally a criminal, and not that the appointment of Burris was done criminally, I don't see how that can fit within the Senate's power given -Powell v. McCormack.

JohnEMack (mail):
Does the Senate require a 60% vote of those present and voting to block a filibuster, or does it require 60 votes? If the latter, then a refusal to seat Burris is effectively a vote for a Repulican Senator, at least for that purpose.
12.30.2008 3:45pm
calmom:
Reid threatened not to seat Blagojevich's pick. Blago called his bluff. And it was a bluff given the Supreme Court's decision, Reid doesn't have that power. This is a game of political chicken. Blago is signaling that he will go down fighting and will take anyone and everyone he can down with him.
12.30.2008 3:48pm
Nunzio:
As Burris is over 29 years old, a U.S. citizen for more than 8 years, and Blagojevich undoubtedly appointed him, the only thing the Senate can do is vote to expel him.

Otherwise, they will be shredding the Constitution.
12.30.2008 3:55pm
merevaudevillian:
Prof. Volokh, I'm not sure that's an entirely fair reading of Sen. Reid's statement. Note the contrasting language used a few weeks ago, when referring to seating him as a Senator:

Please understand that should you decide to ignore the request of the Senate Democratic Caucus and make an appointment we would be forced to exercise our Constitutional authority under Article I, Section 5, to determine whether such a person should be seated.


Note that, in Sen. Reid's prior letter, he states that the Senate would be "forced" to "determine whether such a person should be seated." Apart from a likely incorrect use of the word "should," the statement suggests a kind of toothless threat: "Watch out, or we'll have to think about Article I section 5! And you'd HATE to see what happens when THAT happens!"

Compare that to the forceful statement today, that he would not be seated by the Democratic Caucus. First, the Democratic Caucus does not have the power to seat him; the Senate does. It might be that the Democratic Caucus would not assist or support seating him, but that's a different turn of phrase. Second, the contrast of "no seat" v. "determine whether such a person should be seated" is stark.
12.30.2008 3:56pm
RPT (mail):
The clock is counting down for the first Jim Lindgren post connecting Burriss to Blagojevich, Bill Ayers and Rev Wright.
12.30.2008 3:56pm
Old33 (mail):
With this whole Blagojevich thing, I'm amazed at how much clout and tacet power state legislators and other state actors are giving to the word of a federal prosecutor.

Pat Fitzgerald says something, and the Illinois political establishment loses its collective sh*t. They're talking about stripping the governor of the power to make vacancy appointments to the Senate, they start impeachment proceedings, the AG asks the State Supreme Court to find that the governor is corrupt as a matter of law...all based on the thus-far unproved allegations of a federal prosecutor.

What happened to the good old days of federalism, where the state looked with suspicion on the word of federal officials? Is Pat Fitzgerald so above reproach that we now dispense with the whole trial phase?

I'm not a huge Blagojevich fan. But good grief...all we've got at this point is the word of Pat Fitzgerald and a bunch of hearsay conversations. And everyone loses their minds.
12.30.2008 3:56pm
Hoosier:
I remember Burris from my days as a Chicagoan. He would not be my first choice for senator. But absent Rotten Rod's legal problems, he would have been a credible pick.

Does Blago think that he's somehow going to garner support from Illinois's black voters by doing this? I can't see why they'd feel at all indebted: Illinois has already elected two black senators. They don't need a corrupt pol's largesse.
12.30.2008 3:58pm
Houston Lawyer:
I predict a total climb-down by Ried before this is over. He's not got anything right on his first or second try yet.
12.30.2008 4:01pm
huh342:
Eugene:

There is ample historical precedent for the Senate to take action against Burris, Powell v. McCormick notwithstanding. The Senate has, upon occasion, chosen to not seat a Senator-elect and vacate the seat by majority vote (last time was the 1974 New Hampshire case). There are really two important issues:

(1) Is an appointment the equivalent of an election. Certainly prior to the 17th amendment it was seen that way, as election-fraud challenges were brought by the Senate against the seating of appointed Senators.

(2) Is a majority-vote to vacate a seat prior to swearing-in Constitutional? To my knowledge, this has never been challenged. But, as they say, I could write the brief.

m
12.30.2008 4:03pm
Hoosier:
Old33

Most of us who have followed Illinois politics for the last twenty years are only surprised that it has taken this long to get the goods on Blago. No one is going on the basis of the indictment alone. Pat Quinn was on one of the Sunday talk shows this past weekend, and he had nothing good to say about Blagojevich. In fact, he said that e has not spoken to him since August of 2007 (sic.).

Why would the Lt. Gov. take such steps to insulate himself from the governor? Because he knew what was going on in Blago's office, one must assume.

Soft Cell comes to mind:

Tainted Gov
We got a
Tainted Gov


Or something like that: The Eighties were a long time ago.
12.30.2008 4:04pm
Sarcastro (www):
Reid will fearlessly say "this far and no further!" followed by complete capitulation and saying "this is the best we could hope for in the circumstances."
12.30.2008 4:06pm
Brian Kalt:
huh342,

The NH case in 1974 was because of problems with the election (it was essentially a tie; the Senate couldn't agree on who won so they had a do-over). That's entirely consistent with Powell and not at all analogous to this case.
12.30.2008 4:08pm
MarkField (mail):

The clock is counting down for the first Jim Lindgren post connecting Burriss to Blagojevich, Bill Ayers and Rev Wright.


You left out the grassy knoll.
12.30.2008 4:09pm
Nunzio:
Hoosier,

Quinn supported Blago during the 2006 election when everyone knew Blago was under investigation for corruption.

Quinn's an opportunist. He's a joke as well.
12.30.2008 4:10pm
Old33 (mail):
Blago may be a bad guy. He may even be guilty as charged.

But he is the Governor. And, at this point, the allegations are based on Pat Fitzgerald's interpretation of intercepted telephone conversations, most of which are the hearsay of the Chief of Staff relaying his conversations with others to the Governor.

I'm sort-of stunned that, at this point, everyone seems to acknowledge that Burris is above-board, and is the kind of person that one would expect to be appointed to a Senate vacancy. And yet, we're all up in arms because the governor makes the appointment, even though we like the guy.

Again, all based on Pat Fitzgerald's word. Is he so above reproach and so infallible that we forfeit the trial stage?
12.30.2008 4:11pm
Bruce Hayden (mail) (www):
I am not quite sure I understand this. Reid is apparently threatening to not seat a Black Democrat appointed by the elected governor of the state. Does this mean that the Senate could refuse to seat anyone it wishes to on any grounds? That would seem to open the possibility of the majority party refusing to seat elected Senators from the minority party. That is one way to crank up majority power, but not one that I can see flying too far.

My guess is that Reid will ultimately have to back down. Appointing a Black was a nice touch, making him almost untouchable, absent significant scandal on the part of the Senator appointee.
12.30.2008 4:13pm
Hoosier:
Nunzio

Yes. See my second sentence, second paragraph.
12.30.2008 4:15pm
huh342:
@ Brian Kalt:

I was merely using the 1974 case as an example of vacating a seat consistent with Powell.

The historical record is littered with examples of Senate appointments being treated as elections (Matthew Quay, Henry Corbett, Gerald Nye, etc.), so while Powell may limit their ability to judge qualifications, their ability to judge the "election" of Burris is not foreclosed by the fact that it was an appointment as opposed to a popular election.
12.30.2008 4:15pm
Brian Kalt:
huh342,

OK, I agree that they could judge the appointment in the sense of saying "this isn't the Roland Burris that Blagojevich appointed," or "Blagojevich didn't sign the papers," but I'm not sure how there is any analogy to be made between judging an election and turning away Burris here.
12.30.2008 4:20pm
Old33 (mail):
BTW...for everyone who though that Barack Obama "played the race card" during the campaign by noting that he didn't look like the presidents on the currency...

Rep. Bobby Rush just gave a Master Class on Playing the Race Card. That was about as naked and unabashed a playing of the race card as you are likely to see in American politics.
12.30.2008 4:20pm
Brendan Loy (mail) (www):
Does anyone think that the Illinois Secretary of State's refusal to "certify" this pick, whatever that means, might give the Senate a potential "hook" to argue -- with at least some minimal degree of quasi-plausibility -- that the senator's "qualifications" are truly at issue, similarly to a disputed election?

I recognize that the Sec. of State has no apparent legal authority to do this, but mightn't his action be enough to facially create a "qualifications" dispute, which then puts the ball in the Senate's court?
12.30.2008 4:20pm
lawyer12341234:
One Constitutional issue not relevant in Powell is Article V.

Could a majority in the Senate really refuse to seat all elected or appointed persons from California? Wouldn't that run afoul of "equal suffrage in the Senate," as sure as refusing to seat all blacks would run afoul of the civil war amendments?

I mean, there has to be some limit to the Senate's power under the judgment of elections, right?
12.30.2008 4:20pm
huh342:
@ Brian Kalt:

Check out the Quay case or other 19th century appointments/elections. The seatings were held up because it was alleged that the seats were sold, under the Senate's power to judge elections. If the Senate has any reason to believe that the Burris appointment was based on a quid pro quo, they have all the right in the world to not seat him, conduct an elections investigations in the Rules committee, and then vote to vacate the seat if they find the election/appointment was not legitimate.
12.30.2008 4:24pm
Steve:
Well, there's little question that if either party achieved a two-thirds majority in the Senate, it could vote to expel all the members of the minority party. The Founders undoubtedly felt that such a scenario was ridiculous and not worth worrying about.

Similarly, assuming for the sake of argument that the Senate has the power to reject an appointment on the grounds that credible allegations of corruption have been made in connection with the appointment process, that really doesn't move us very far down the slippery slope towards a bare partisan majority rejecting all the Senators of the opposing party. Heck, the present situation isn't even a partisan issue.
12.30.2008 4:28pm
Brian Kalt:
huh342,

I agree with all of that (see my post here). But they aren't talking about investigating and making findings. They're not even alleging that this appointment was corrupt.
12.30.2008 4:32pm
merevaudevillian:
What "qualifications" could possibly be in dispute? A recalcitrant Secretary of State goes rogue and refuses to certify on an ad hoc basis? An Illinois court would quickly resolve that dispute, should it arise, and the Senate would have no basis to reject it.

Perhaps ironically, the Senate is anxious to "provisionally" seat a presumptive Sen.-Elect Franken, even if a court case is still pending at the time. I wonder what will happen if Sen. Reid has to juggle those two qualification-disputes at the same time.
12.30.2008 4:40pm
calmom:
Reid and the rest of the Senate Democrats and the Illinois Democrats thought they could intimidate Blago. They called him crazy, then stupid. And of course, none of them had spoken to the Governor in years. (ha) They want Blago to go away quietly before he brings down any more Democrats. But Blago has all the power here. He can name names. He could bring down plenty of powerful Democrats for activities over years. The Senate seat sale is just the most recent and likely not the most serious case of corruption going on in Illinois. This is going to be going on for a long time. Get your popcorn.
12.30.2008 4:41pm
huh342:
@ Brian Kalt:

Yeah, I guess we don't disagree. Although I do think it's purely a political decision to actually conduct the investigation or not. The Senate could easily (as a procedural matter) do any of the following:

(1) refer the case to the rules committee with instructions to report back forthwith (basically immediately), meaning the issue would never leave the floor.

(2) put together a UC agreement bypassing an investigations

(3) simply vacate the seat without investigation, which would be unprecedented but not necessarily unwarranted.

Basically, the only response Burris or anyone else would have to this would be political arguments, which may or may not be substantial in their effect on an individual Senator's decision to go along with these manuevers.

But yes, I agree with you that bypassing an investigation would be unusual.
12.30.2008 4:44pm
Sarcastro (www):

They want Blago to go away quietly before he brings down any more Democrats


Step 1: Curse a lot and try to sell a senate seat.
Step 2....
Step 3 is the downfall of the Dems!

This totally follows! I think Obama may be going down because of this as well, somehow.

Also George Soros.

And Mathew Mattson, who beat me up in grade school.
12.30.2008 4:45pm
Nunzio:
The Illinois Democrats in the state legislature bear some blame here, too. They could have voted to hold a special election for the seat but declined for fear the voters would elect a Republican.

Instead, they opted to pressure Blago to step down so Pat Quinn could take over and appoint some stooge.

Unfortunately, Blago did not go quiet into that good night. He is fighting impeachment and made an appointment to Obama's former Senate seat.
12.30.2008 4:51pm
mariner:
calmom:
But Blago has all the power here. He can name names. He could bring down plenty of powerful Democrats for activities over years. The Senate seat sale is just the most recent and likely not the most serious case of corruption going on in Illinois. This is going to be going on for a long time.

No, it won't.

If it really looks like Blago is naming names he will suddenly die of "natural causes", and Chicago politics will continue as they have for generations.
12.30.2008 5:04pm
Hoosier:
Nunzio:
The Illinois Democrats in the state legislature bear some blame here, too. They could have voted to hold a special election for the seat but declined for fear the voters would elect a Republican.


Exactly. And this just amazes me. The IL GOP is in horrible disarray, and there's no obvious non-resident right-wing black ideologue who seems anxious to run for the job. Alas.

I don't know what the hell they are worried about? Was Ryne Sandberg going to seek the GOP nomination or somfin'? I doubt that Billy Corgan is a Republican. Same with R. Kelly.

I'm thinking the best bet for the GOP in the next IL senate race is Steve Dahl. Which would be cool if Al Franken is in the Senate. Since, unlike Franken, Dahl has occasionally been funny in the last decade.
12.30.2008 5:11pm
BT:
Bobby Rush, my favorite Black Panther, just played the race card beautifully. I had completely forgotten about Rahsaan Roland Burris.(a little funny for you Jazz fans out there). Burris has the reputation of being a clean politician, not a small achievement in Illinois. He is black and has been a loyal D for a long time.

Blogo did well with this pick because he knew he would get the kind of reaction Rush gave. And he also knew that Burris has a clean rep, so that it will be hard to tarnish him through Blago. Just wait til J Jackson, Sharpton, et al join the fun on Burris' side. Harry Reid will be peeing his pants. Also it will be interesting to see what Dick Durbin says about the pick.
12.30.2008 5:14pm
CJColucci:
Is it really a good idea to have a Senator packing heat in his waistband and possibly shooting himself in the leg again....What?....Oh....Never mind.
12.30.2008 5:15pm
Hoosier:
mariner

If it really looks like Blago is naming names he will suddenly die of "natural causes", and Chicago politics will continue as they have for generations.

Well, whose fault would it be Blagojevich ran into trouble because he foolishly decided to take a swim in the Skokie Lagoons? At three a.m.? While wearing two 50lb. weights areound his ankles? And all this after pistol-whipping himself. [Or eating a big meal. Or something.]

I mean, it's always easy to ignore personal responsibility, and to just "blame the system."
12.30.2008 5:16pm
Carlos:
What person with standing would want to challenge a Democrat-led Senate rejection of a Blaggo-tainted appointee? Burris himself? How much of his own political record does he want dragged out into the light?

Ah speck Reid and his cronies can drag things out till Blaggo goes down.
12.30.2008 5:23pm
JoeSixpack (mail):
This is just political posturing by Reid to distance the Democrats from Blago. They won't actually do anything to block Burris from the Senate, they just want to look like they were against it but in the end had no choice but to accept it.
12.30.2008 5:36pm
Norman Bates (mail):
The Senate may not have the constitutional power to deny Mr. Burris his seat but, as Nunzio has pointed out, like every deliberative body, the Senate has every right to expel a sitting member for any cause. If Reid is sincere he should at this moment be preparing the vote to expel Senator Burris that will occur immediately after the Senator is sworn in. Of course the predicate in the previous sentence is demonstrably false so.....
12.30.2008 5:44pm
David M. Nieporent (www):
Exactly. And this just amazes me. The IL GOP is in horrible disarray, and there's no obvious non-resident right-wing black ideologue who seems anxious to run for the job. Alas.
I'm sure Alan would serve if you asked politely. Unless you're pro-choice; then he'd just beat you over the head with a cane.
12.30.2008 5:45pm
pluribus:
Bruce Hayden:

I am not quite sure I understand this. Reid is apparently threatening to not seat a Black Democrat appointed by the elected governor of the state.

What does the fact that he is Black have to do with anything? Now that we have elected a Black president, I would hope that racial considerations would no longer be considered appropriate in determining the qualifications of public officials.
12.30.2008 5:52pm
Impeachment:

Illinois Secretary of State Jesse White today said he won't certify the appointment. Under state law, a governor's appointee can't ascend to the U.S. Senate unless the choice is co-signed by the secretary of state.

This would give the Senate the legal foundation to refuse to seat him.

So I anticipate someone will file a writ of mandamus soon, and the courts will direct the SoS to certify. But it could cost time the Blago team doesn't have.
12.30.2008 5:53pm
pluribus:
Let's assume that the secretary of state of Illinois can be legally compelled to certify Burris's appointment, which he has said he will refuse to do. Let's assume that the Senate can be legally compelled to seat Burris, which its majority leader has said it will refuse to do. Then what happens? Blagojevich will be impeached and removed from office, for the impeachment process is essentially political, and he has raised his finger at all of the honest politicians in Illinois and Washington. And Burris will be so disgraced by his acceptance of this appointment that he will be turned out of office at the next Illinois senatorial election. Make it political, Blagojevich, and the political cards are stacked against you.
12.30.2008 5:58pm
Curt Fischer:
I was half expecting Blago to announce that he was appointing Patrick Fitzgerald to the US Senate. Two birds, one stone, and all that stuff.
12.30.2008 6:05pm
Cornellian (mail):
It's hard to believe a totally clean candidate would accept an appoint by Blago under these circumstances. Why would you be willing to see your reputation tainted by association with Blago?
12.30.2008 6:05pm
Plumber2:
Blago is governor, with all rights and privileges of that office, unless and until impeached and convicted.

Bad facts make bad law. Trying to tweak a system for this type of rare perturbation is unwise.
12.30.2008 6:07pm
Michael B (mail):
Innocent until proven guilty, before the law, applies even to Gov. Blagojevich; seems some, including Illinois Lt. Gov. Quinn, are forgetting that basic principle. It's hard to believe at least some of that motivation doesn't have its origins in desiring to scapegoat Blago as the sole guilty party and focal point.

What happened to Mr. Transparency? Perhaps it means nothing, relative to Obama, or perhaps this is a foretelling of the future, incurious White House press corp.
12.30.2008 6:23pm
Michael B (mail):
A second link was intended.
12.30.2008 6:26pm
Sarcastro (www):
Michael B Don't do Jim's job for him!
12.30.2008 6:28pm
Cardozo'd (www):
It seems like a little bit of a political suicide for Burris to take this appointment - regardless of how qualified or unqualified he may be, how wise of an appointment this was, or how pure his intentions are, he will forever be known as the senator that made it because of his relationship with a corrupt man. From here on out, everything he does and says will be evaluated under a microscope, his intentions will be questioned, and he better hope that his record is completely clean, with no skeletons in the closet. If I were him, I would have held off on my Senatorial ambitions and waited for the next round of elections, putting my faith in the good people of Illinois.
12.30.2008 6:29pm
D Palmer (mail):
I don't like Blago, but Chicago Dem's are just as bad as Republican's at choosing cadidates. We Repub's choose a sex maniac to go up against Obama, then when he is forced out replace him with a right wing carpet bag nut job.

The Dem's on the other hand select Capt Hair over Paul Vallas and a few years later, elect Todd Stroger when his father (who similar to Howard Hughs hadn't been seen in months) suddenly (post primary) decideds he can't run for health reasons and his toadies get his son put on the ballot in his place. Todd's first order of business, raise the sales tax to the highest level in the country and pad the county payroll with a few thousand more votes..er jobs.

*sigh*
12.30.2008 6:34pm
D Palmer (mail):
Oh, but I had a point that I completely failed to get to, my wife would be shocked.

Right now all I see is a blow hard talking big. He is telling his COS what he WANTS, but I haven't heard any evidence of an actual crime.

If someone can document that he acually solicited a bribe, then we would have something. At this point we just have a small man whining that he deserves something of value for doing his job above and beyond his actual pay check.

Like a contract requires an offer and acceptance, doesn't a conspiracy require more than a boss telling a suboirdinate that he beleives that he should get special compensation in exchange for his decision?
12.30.2008 6:39pm
Oren:

If someone can document that he acually solicited a bribe

The word bribe doesn't need to happen -- an unspoken quid-pro-quo is enough. As Fitzgerald said when busting the GOP governor -- he is willing to take strong circumstantial cases to courts and juries are willing to convict on strong circumstantial evidence.
12.30.2008 6:47pm
resh (mail):
Yea, but at the end of the day, Blago got the last laugh. Admire the poisoned poetry. Surely he's a corrupt sob, but raise your hand if you know any politico who ain't.

No hands? I didn't think so. That's exactly why Burris-and Blago, in a sick sense-will prevail in the end. Harry Reid is nothing if he's not a two-bit punk, and deep inside his timid, empty soul, he knows he has no balls to challenge the great mystique which calls itself the "will of the people." Ditto the species of scalawags who surround Reid.

Let us recall that the will-of-the-people ambit is vaunted for an especial, if not apparent, reason: it has the good sense to know that it's not in the business of selecting angels.

Hail Blago.
12.30.2008 6:48pm
Oren:
Also, Burris could take the position and announce he is retiring in 2010 and will not seek any public office. That would at least show that he does not stand to gain politically from the appointment.
12.30.2008 6:48pm
Dave N (mail):
Oren,

Given that Burris is 71 years old, that seems highly likely.
12.30.2008 6:58pm
Oren:

Admire the poisoned poetry. Surely he's a corrupt sob, but raise your hand if you know any politico who ain't.

Corruption is not binary, I can list politicians that are more corrupt (Stevens, Inoyue) and less corrupt (Flake comes to mind).

Blago is astoundingly corrupt, even by IL standards.
12.30.2008 7:01pm
RPT (mail):
"Hoosier:

Well, whose fault would it be Blagojevich ran into trouble because he foolishly decided to take a swim in the Skokie Lagoons? At three a.m.? While wearing two 50lb. weights areound his ankles? And all this after pistol-whipping himself. [Or eating a big meal. Or something.]"

Michael Connell, meet Rod Blagojevich. Don't fly in any small planes.
12.30.2008 7:07pm
CDU (mail) (www):
Innocent until proven guilty, before the law, applies even to Gov. Blagojevich; seems some, including Illinois Lt. Gov. Quinn, are forgetting that basic principle.


That principle applies to criminal trials, not to the seating of senators.
12.30.2008 7:19pm
Bob from Ohio (mail):
Burris is 71. This was his best chance to grab a brass ring. He was not likely to win a contested election. He has lost more than he has won statewide, I believe.

No downside to him.

Don't assume that he would not try to get "re-elected" in 2010 though. How many US senators are over 70? Quite a few.

For sheer chutzpa, you got to admire Blago.
12.30.2008 7:38pm
Michael B (mail):
"That principle applies to criminal trials, not to the seating of senators." CDU

Correction accepted, formally understood. Though I was invoking it informally, in consonance with EV's post.

Sarcastro,

More incomprehension. My own interest, relative to Blagojevich, Emanuel, Obama, et al., has always been primarily focused upon the MSM, the press, specifically their devotion to a certain incurious quality, at times a more obsequious quality.
12.30.2008 7:52pm
Orson Buggeigh:
"Hoosier:

Well, whose fault would it be Blagojevich ran into trouble because he foolishly decided to take a swim in the Skokie Lagoons? At three a.m.? While wearing two 50lb. weights areound his ankles? And all this after pistol-whipping himself. [Or eating a big meal. Or something.]"

Heck, I thought SOP for troublesome politicians was sending them to go join Jimmy Hoffa checking the bottom of Lake Michigan for leaks. All it takes is a call to the Hymie Weiss Cab Company right?
12.30.2008 7:54pm
R Gould-Saltman (mail):
O.K.: can you decode BT's "funny" for me? I can't see it, and I've quoted R.R.K.'s "Listen with all your might!" with the best of 'em.

Is what's tickling him merely that there have been two black guys named "Roland"? Does Burris have a previously undisclosed talent for playing three saxophones at once? Has BT possibly confused Burris with David Patterson, on the way to an effort to top the SNL Patterson sketch for tastelessness?
12.30.2008 7:59pm
Thales (mail) (www):
More evidence that the Illinois legislature is completely inept. How difficult would it have been to pass a one sentence statute stripping the governor of the power to fill Senate vacancies? Would there have been a single no vote?
12.30.2008 8:00pm
Orson Buggeigh:
This is getting more interesting. The President elect is apparently now on record saying that no one appointed to his former Senate seat by Governor Blagojevich would be acceptable. In one sense, regardless of Burris' qualifications for the senate (he certainly has more than Caroline Kennedy Schlossberg), regardless of his degree of clean hands or dirty ones, it is a loss for the Democrats to have anyone appointed by Blagojevich enter the Senate. This is just one more sleazy political deal involving members of the Democratic Party which the public is becoming aware of, despite the complete lack of interest by the media.
12.30.2008 8:11pm
RPT (mail):
"Orson:

This is just one more sleazy political deal involving members of the Democratic Party which the public is becoming aware of, despite the complete lack of interest by the media."

Too bad none of this was on the news today. Please explain the sleaziness. Should B appoint a Republican?
12.30.2008 8:46pm
RPT (mail):
"Michael B:

More incomprehension. My own interest, relative to Blagojevich, Emanuel, Obama, et al., has always been primarily focused upon the MSM, the press, specifically their devotion to a certain incurious quality, at times a more obsequious quality."

After 8 years of this incuriousity and obsequiousness perhaps we are due for a change.
12.30.2008 8:49pm
Roger Schlafly (www):
More evidence that the Illinois legislature is completely inept. How difficult would it have been to pass a one sentence statute stripping the governor of the power to fill Senate vacancies? Would there have been a single no vote?
I would vote NO, if I were in the legislature. If Blago is unfit for office, then the proper thing to do is to impeach him. As long as he is the governor, then he should do the governor's job. He is innocent until proven guilty.
12.30.2008 8:54pm
Orson Buggeigh:
RPT says, "Too bad none of this was on the news today. Please explain the sleaziness;" then asks, "Should B appoint a Republican?"

Michael B. has already addressed this, and you quote him: "More incomprehension. My own interest, relative to Blagojevich, Emanuel, Obama, et al., has always been primarily focused upon the MSM, the press, specifically their devotion to a certain incurious quality, at times a more obsequious quality."

This is a big part of the problem. The media is so obsessed with the prospect of electing either the first woman or the first Black to the Presidency that it overlooks serious issues that ought to be asked. The problems with the prospect of a governor selling a senate seat seem to be as real and as serious a threat to good government as anything in the Valerie Plame Wilson case. But, unlike the Wilson case, the media seems to have very little interest in what Governor Blagojevich has been doing. Or the finances of Charles Rangel, which seem to look questionable. Then there is the interesting comparison of the way the media compared the qualifications of Sara Palin to be VP and Caroline Kennedy Schlossberg to be Senator. The media doesn't seem to be as interested in actually reporting on what the elected officials are doing, as in looking for a sensational story. Preferably a sensational story that helps politically progressive causes. Sorta like implying an affair between a female lobbyist and a Republican candidate for the Presidency. Oops, maybe that isn't such a good plan, Ms. Iseman is now suing the New York Times for 27 million.

Maybe you answered your own question: "After 8 years of this incuriousity and obsequiousness perhaps we are due for a change." I agree. But I don't think the mainstream media will do the job. They don't seem to be interested in anything except electing members of the Ivy League elite. Question for you - Didn't we declare our independence from Britain in 1776 in part to get rid of hereditary political leaders?

So how does this hurt the Dems? It hurts because Obama ran as the hope and change candidate. He promised to work for an end to the old, questionable ways of conducting politics. I'd say he must be hoping for some hope and change. Like a resignation from the Governor of Illinois before appointing a Senator who will appear to be the tool of a corrupt politician, regardless of his personal qualifications. The Democrats just spent four years running on the platform that they were clean, honest government people, compared to the corrupt Republicans. Now they are making Senator Ted Stevens look good. What they need is for Blagojevich to disappear, quickly. Nixon did it.

To be fair, I didn't vote for Mr. Obama. Having said that, I wish him well. He will be our President in a few weeks, and it is the nation's best interests for him to succeed. This slow motion fiasco doesn't help him get his administration off to a smooth start.
12.30.2008 9:23pm
LM (mail):
Come on kids. "Roland Burris" is an anagram for "Rod runs R(ahm) I(manuel) lab!" Yeah, I know he spells it with an "E," but if you can be derailed by anyhing that superficial and obvious, you have no right to call yourselves anonymous blog thread commenters.
12.30.2008 9:30pm
LM (mail):
You see? They already stole the "t" out of "anything."
12.30.2008 9:32pm
Michael B (mail):
RPT,

Yea, Rathergate, David Gregory's out-of-control anger and the rest: pure obsequiousness. I'll give 'em this, they never did do the "Bush/Blair=Stalin/Hitler" headline, at least not overtly so. If that fact counts as "obsequiousness" by your standards, whatever. By any one person's measure - whether yours, mine of someone else's - it can be argued the press dropped the ball at times during the last eight years. But to suggest any obsequiousness existed between the press and the Bush administration ... whatever, believe what you want to believe. I don't waste time attempting to disabuse 9/11-truthers either.

Bill Clinton had Monica.

Barack Obama has the press.

And it's not a real big secret.
12.30.2008 10:26pm
Kralizec (mail) (www):
It seems a legal reasoner will tend to do better work when he puts himself in the position of a founder, who, being acquainted with the lawless condition that allows him to legislate, will not easily imagine that there is any law that says his constitution must succeed. When the American Founders wrote, "Each House shall be the judge of the elections, returns and qualifications of its own members," it seems they were acknowledging the existence of powers which no written constitution can overcome and to which any constitution must therefore be adapted, if its framers wish it to endure. If a sufficiently large number of the members of a House of Congress agree that some man has been unjustly put in their midst and falsely or unjustly called "a Member" of their House, it may be that nothing but armed men, that is, a small army, will be able to persuade them even to make a show of accepting him. I give the Founders credit for having accepted as a matter of course that a constitution would endanger its own power if it tried to compel the Members of a House of Congress to accept as a Member someone whom a large majority of the Members considered a fraud. Nor can I easily imagine the Founders presuming that the authority of unarmed judges would prevail over the just sentiments of an arbitrarily large majority of the Members of a House. And I cannot imagine their being so foolish as to have been willing to elevate the judgment of the Executive over the judgment of the Members of a House in matters pertaining to the integrity of their very House itself.
12.30.2008 10:28pm
Careless:


Does Blago think that he's somehow going to garner support from Illinois's black voters by doing this? I can't see why they'd feel at all indebted: Illinois has already elected two black senators. They don't need a corrupt pol's largesse.

well, he still had a 21% favorable rating from them last I heard (triple his overall rating, which seems far too high when compared with Congress).

It's all sorts of fun hearing about the donations his company gave to Blago in recent years. I just heard someone on television say "My suspicion is that any money he gave the governor was given many years ago because the governor could not be foolish enough to give it to someone who's made recent contributions." My laughter at that woke the baby.


It seems like a little bit of a political suicide for Burris to take this appointment - regardless of how qualified or unqualified he may be, how wise of an appointment this was, or how pure his intentions are, he will forever be known as the senator that made it because of his relationship with a corrupt man.

He's been out of office for more than a decade, making money finding minorities for affirmative action slots. His political career was over until this happened.
12.30.2008 10:40pm
Oren:


More evidence that the Illinois legislature is completely inept. How difficult would it have been to pass a one sentence statute stripping the governor of the power to fill Senate vacancies? Would there have been a single no vote?



I would vote NO, if I were in the legislature. If Blago is unfit for office, then the proper thing to do is to impeach him. As long as he is the governor, then he should do the governor's job. He is innocent until proven guilty.

Then stick a sunset clause in the law. Say, end of '09.

Moreover, impeaching him could take some time (especially if they have Ollie North style problems with compelled testimony and immunity. To say that "innocent until proven guilty" means "subject to absolutely no restrictions until convicted" is a wholesale distortion of those words.
12.30.2008 10:51pm
Ariane Reed (mail):
Burris did fine in statewide elections when he got the Democrat nomination. He did poorly in the Democrat primaries, however, which is why he hasn't held office in some time. I will be shocked if Burris is not seated. If Quinn had appointed him, would there be any question as to whether he was qualified? Quinn, by the way, is an idiot who is fuming because it looks like he won't get to appoint the next Senator. And I'm actually starting to like Blago!
12.30.2008 11:04pm
Eli Rabett (www):
The nice thing about impeachment and conviction is you don't need proof and there is no appeal.
12.30.2008 11:16pm
GatoRat:
Nothing in the constitution grants the senate the right to seat or not seat him--who the heck is making this crap up? All they can to is expel him with 2/3 majority vote. For heaven's sake, will people actually READ the constitution?
12.30.2008 11:23pm
Hoosier:
Orson Buggeigh

Well, water is water.

I think the Mob dumps bodies in the Lagoons when they want them to be found—as a warning—and in the lake when they want the person to simply "disappear." Lake Michigan is a deep, deep lake.

Or perhaps this is just localism on my part: I grew up minutes from the Lagoons, and it was always exciting when a body was found. Or someone you knew was arrested for coming on to an undercover cop in one of the public toilets.

It's the suburbs. You gotta take excitement where you find it.

Re: Presumption of innocence—That does not apply to governors of Illinois who are not named "Jim."
12.30.2008 11:45pm
coffee fiend (www):
Blagojevich represents everything that is crooked politics... and he doesn't show even a hint of remorse
12.30.2008 11:52pm
Careless:

Blagojevich represents everything that is crooked politics... and he doesn't show even a hint of remorse

That's the best thing about this whole time. He was so crazy/stupid that he was the only one who didn't know they were watching him/that selling a senate seat was illegal and now he's carrying on like he did nothing wrong til the end.
12.31.2008 12:08am
jmcg (mail):
Anybody catch Karl Rove's shout-out to the VC re: this post on this evening's Hannity &Colmes?
12.31.2008 12:24am
Oren:

Nothing in the constitution grants the senate the right to seat or not seat him--who the heck is making this crap up? All they can to is expel him with 2/3 majority vote. For heaven's sake, will people actually READ the constitution?



Section 5. Each House shall be the judge of the elections, returns and qualifications of its own members ...


Ahem.
12.31.2008 12:42am
RPT (mail):
"Michael B:

Yea, Rathergate, David Gregory's out-of-control anger and the rest: pure obsequiousness."

1. Now that "Rathergate" is being properly litigated we might have a much different ending, based on the facts and evidence rather (no pun intended) than CBS' desire to curry favor with the Bush regulators by dumping Rather the day after the election. How did the critics "know" the letter was forged before the broadcast was over, anyway? Is Bozell that good?

2. David Gregory is as sycophantic as Russert or most of the others. If you think he's hostile to the R cause based on one press conference, you need to go watch the Rove-Gregory rapping video again. He's harmless.
12.31.2008 1:33am
Random Commenter:
"The clock is counting down for the first Jim Lindgren post connecting Burriss to Blagojevich, Bill Ayers and Rev Wright."

Sadly, the clock is not counting down to the date when RPT will stop dragging Bill Ayers into every thread on this site. Maybe skip a thread once in a while?


"1. Now that "Rathergate" is being properly litigated we might have a much different ending, based on the facts and evidence rather (no pun intended) than CBS' desire to curry favor with the Bush regulators by dumping Rather the day after the election."

Just out of curiosity, do you believe the documents were authentic?
12.31.2008 2:32am
Kralizec (mail) (www):
RPT said, "Now that "Rathergate" is being properly litigated we might have a much different ending, based on the facts and evidence rather (no pun intended) than CBS' desire to curry favor with the Bush regulators by dumping Rather the day after the election. How did the critics "know" the letter was forged before the broadcast was over, anyway? Is Bozell that good?"

The matter of "before" and "after" is complicated by little things called "time zones," of which the contiguous United States have four. As for the doubters, we numbered in the hundreds of thousands, among whom the few who were the most attentive, analytical, knowledgeable, and lucky made crucial discoveries and blogged them or e-mailed them to bloggers. As I watched Allah Is in the House, PowerLine, and other sites, the bits of evidence of fraud piled up, and we laughed and laughed at the shoddiness of the forgery and the credulity of Dan Rather. I always expected that loon to get up and run at the camera one day, but what he really did vastly exceeded anything I imagined.
12.31.2008 5:06am
wfjag:
Hoosier wrote:

Well, whose fault would it be Blagojevich ran into trouble because he foolishly decided to take a swim in the Skokie Lagoons? At three a.m.? While wearing two 50lb. weights areound his ankles? And all this after pistol-whipping himself. [Or eating a big meal. Or something.]

But, doesn't that only mean that ACORN would have to re-register him to vote at his new address? In Illinois couldn't he still run for re-election?

If Missouri can elect a dead man US Senator, what's wrong with Illinois electing someone who resides in small pieces at the bottom of a waste treatment system as Governor?
12.31.2008 8:56am
Plutosdad (mail):
What makes anyone think Illinois politicians care about the law or about the Constitution?

It doesn't stop even the federal Congress from deciding judicial appointments based on whims and political stances, rather than fitness to be a judge. It sure as hell won't stop the GA of Illinois from doing whatever it wants.
12.31.2008 10:09am
BT:
Some stuff to keep in mind as this plays out. Bobby Rush is the only guy to defeat Barack Obama in an election. BO ran for Rush's congressional seat in 2000 or 2002. Rush beat him handily. My understanding is that there is no love lost between them. IIRC Rush endorsed BO's D opponent in the 2004 US senate race. Rush has a lot of street cred in the black community and Blogo knows this. It is going to be tougher to ignore this pick for the D's than I think it may appear at the present time.

R Gould-Saltman

I am sorry you did not find my reference to Rahsaan Roland Kirk/Burris funny. Roland Kirk was an larger than life, remarkably talented musician (may he rest in peace). Roland Burris is a go-along-get-along guy who is anything but larger than life. I picked up the nickname from a Sun Times reporter about 25 years ago and thought it was funny then and still do. Maybe I should have said, a little funny for you less thinned skinned Jazz fans out there.
12.31.2008 10:32am
D Palmer (mail):
Oren,

Re: Section 5.

Each House shall be the judge of the elections (Burris was appointed, not elected, so nothing to judge here) , returns (not sure what this means) and qualifications of its own members (can the Seante without being struck by lightning or breaking out in hysterical laughter at its own audacity truly say that Burris, an experience politician, isn't qualified to be a Senator?)...


Sorry, nothing in the limited Sect 5 quote provides a reason for the Senate NOT to seat Burris.
12.31.2008 11:14am
FlimFlamSam:
Powell v. McCormick was wrongly decided. The question of whether to seat or remove a Senator is purely political, not subject to judicial review (despite the Supreme Court's wrong statements to the contrary).

D Palmer,

The "elections" reference in Section 5 of the Constitution clearly covers situations where a Senator is appointed, for reasons described by previous posters.
12.31.2008 11:27am
David Warner:
Hoosier,

"I remember Burris from my days as a Chicagoan. He would not be my first choice for senator. But absent Rotten Rod's legal problems, he would have been a credible pick."

I remember him, and I wasn't even a Chicagoan. 70's Cubbies, good times.

"Does Blago think that he's somehow going to garner support from Illinois's black voters by doing this? I can't see why they'd feel at all indebted: Illinois has already elected two black senators. They don't need a corrupt pol's largesse."

Well, they don't need it, but both Mayor Daleys could tell you that there is no game in which the score is more closely kept, and a little cushion never hurt anyone, especially when a Federal Prosecutor is on your case, as I'm sure a certain former President could tell him.
12.31.2008 11:32am
D Palmer (mail):
FFS,

OK, for the purposes of Sect 5 appointed = elected.

Blago is (alas) the duly elected Governor of Illinois empowered to fill the senate vacancy. He has been accused of a crime, but not convicted or even indicted. Any distaste the senate may have for the Blagojevich does not invalidate his right to make the appointment.

Burris's appointment is as valid as if he had been elected by a landslide.

Frankly, Bobby Rush was right about one thing: there is some VERY importnant legislation that will be pushed through early in the year and the citizens of Illinois should not be cheated out of their proper representation during this process.
12.31.2008 11:37am
autolykos:

It seems like a little bit of a political suicide for Burris to take this appointment - regardless of how qualified or unqualified he may be, how wise of an appointment this was, or how pure his intentions are, he will forever be known as the senator that made it because of his relationship with a corrupt man. From here on out, everything he does and says will be evaluated under a microscope, his intentions will be questioned, and he better hope that his record is completely clean, with no skeletons in the closet. If I were him, I would have held off on my Senatorial ambitions and waited for the next round of elections, putting my faith in the good people of Illinois.


Political suicide? Burris is 71 years old and he doesn't hold an elected office (he lost his bid for governor to Blago). If nothing else, getting seated in the Senate will get him the benefit of a Senate pension, which I will wager is considerably larger than the pension offered to a former Attorney General. It's not like he was a viable candidate for any statewide office before this, not to mention the Senate seat.
12.31.2008 11:50am
David Warner:
In further developments on the Cub connection, evidently Blago's first choice has continued to be an enthusiastic voter, but was sadly unable to accept his appointment to high office.
12.31.2008 11:52am
Hoosier:
David Warner

Perhaps we are speaking of different Burrises? (Besides, I'd always hoped Blago would appoint Paul Reuschel to the Senate.)
12.31.2008 12:08pm
art (mail):
So the real question is can the Illinois Secretary of State be compelled to certify the Burris appointment? I'm not a lawyer...
12.31.2008 12:50pm
R Gould-Saltman (mail):
BT: I wasn't offended, so no apologies needed; just puzzled that there might be a joke so subtle I was missing it.

I even considered that there was a remote possibility of a confusion of Burris with Deval Patrick, whose father Pat Patrick, a long-time baritone player in the Sun Ra Solar Myth Arkestra, might then somehow have been confused with Roland Kirk. . . but that seemed too far-fetched, and I simply couldn't see any other connection. . .

Instead, it turns out to be the sort of mere verbal goofiness based on the name that inspired a number of patients and dental school students of my former dentist, Dr. Lynette K. to refer to her, behind her back, as "Dr. Lynette 'Squeaky' K."
12.31.2008 1:13pm
BT:
R Gould-Saltman

I had forgotten about the Deval Patrick connection to Sun Ra with Patrick obviously being from the southside. Anyway the political theatre value alone of all this with Rush, Blogo et. al is something else.

As an aside, a show I hope to see in heaven (not that I'll ever get there) George Clinton &Parliment/Funkadelic opening for Sun Ra.
12.31.2008 3:18pm
GatoRat:
"Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members"

This means within the limits already outlined in the Constitution. The senate can't just make stuff up. There is NO provision in the constitution for the senate "to seat" anyone. This is one of those made up nonsense things where those in power pretend they have more power than they actually have.

Neither the Senate nor House can refuse to allow a duly elected or appointed Senator/Representative act in that capacity. (Even if you could show that someone really did buy the appointment, I see no constitution power to act other than expulsion.)

(I should add that however bad Blag is, anyone who thinks that what he did is extraordinary is tremendously naive. His problem is that he didn't understand that politics is as much about what you don't say as what you do. Rahm understood that which is why he's "clean.")
12.31.2008 6:25pm
Vladimir (mail):
Eugene, I'm a bit baffled by the claim that the Senate will have to seat Burris. Perhaps this is about the differences in our approaches to constitutional interpretation more than anything. But until I started reading blogs this afternoon, I was convinced Harry Reid was on terra firma in refusing to have Burris seated. Maybe I'm just a vulgar legal realist, but it seems to me positively silly that a court would require the Senate to seat Burris.

The argument relies less on formal case logic than on the obvious: Blogo's is an insane likely criminal who was recorded tainting the appointment process in the most corrupt way possible; his decision to appoint Burris is hubris cubed; and the Senate democrats of course have every right not to honor his outrageous actions. To say that there is a case that, read formally, stands in the way of the Senate Democrats doing the right thing seems to me to represent everything wrong with formalism.

So what do we do in such situations, when the a superficial reading of a case seems to preclude doing the obviously sensible thing? Must we just apply cases without takig context into account? I certainly hope not. Instead, we ought to read the relevant precedent narrowly. Can Powell be so read, convincingly? I don't see why a competent lawyer can't distinguish it persuasively. For surely the Powell Court didn't contemplate a situation as comical as this one; it was writing, for goodness sake, about the refusal to seat Adam Clayton Powell, D-Harlem, in the 1960s. Doesn't this (racial/political) context make all the difference in the world?

So if the Court in Powell wrote a bit broadly, surely they would have intended a small carve out for a case such as this. So why can't we say that Powell v. McCormick is about elections, not appointments, which raise some pretty distinct issues (such as the possibility that the whole process was tainted by bribery -- which is akin to a whole election tainted by graft in any case)?

Doesn't Karl Llewellyn's notion of "situation sense" pretty much cover this?
12.31.2008 7:09pm
Pennywit (mail):
Isn't the logical thing for Burris to be seated in the Senate, but refused admission to the Democratic Caucus?

I mean, the law may require that the Senate accept him, but the Democratic Party is under no obligation to invite him to DSCC cocktail hour ...

--|PW|--
12.31.2008 7:46pm
TaxMeMore (mail):
You mean the great Constitutional Law Professor and Scholar, Presidential Elect Barack Obama is dead wrong about siding with the Senate Dems that want to ignore the Constitution and refuse to seat Burris, the current lobbyist and Blago donor? Obama is wrong about his interpretation of our Constitution before he even takes office, and on such a no-brainer issue like this?

Is trying to block a US Senator from serving a high crime or misdemeanor? Can we just impeach Obama now before all his Chicago thugs are crawling around everywhere in DC?
12.31.2008 8:30pm
LM (mail):
TaxMeMore,

I'm confused. Are we supposed to hate Obama because he doesn't want a Chicago thug appointing U.S. Senators or because he does? Because I was all on board with you about hating him for being against Blago's appointment, but then you took that left turn at the end that seemed like you think Chicago thugs crawling around DC would be a bad thing.

I'm just asking, because basically we agree on the most important thing, which is to hate Obama and do everything we can to prevent him from doing a good job. I'd hope we could all agree on at least that much, right?
12.31.2008 10:06pm
gerbilsbite:
When the real goal is simply to stall the appointment long enough for Blago to be removed or for a special election to intervene, any argument that the present case can be distinguished from Powell ought to do the trick. Hell, it took over two years from his re-election for Powell to be granted cert.
12.31.2008 10:42pm
Bruce Hayden (mail) (www):
I am not quite sure I understand this. Reid is apparently threatening to not seat a Black Democrat appointed by the elected governor of the state.
What does the fact that he is Black have to do with anything? Now that we have elected a Black president, I would hope that racial considerations would no longer be considered appropriate in determining the qualifications of public officials.
My quip was said somewhat in jest, but seems to be accurate, if the reaction of the Black community is in indication. Until Barack Obama is sworn in as president, there is currently one black member of the Senate. Absent Burris following Obama in that seat, that number would almost invariably go to zero. Based on population, Blacks should have 20 or so Senate seats. But since there are no majority-minority Senate seats (as there are in the House), there is only the one Black held Senate seat right now, and that Senator is scheduled to leave office shortly.

While we can argue all we want whether or not Martin Luther King, Jr. would have accepted this situation or not, my guess is that a distinct majority of the Black community would not.
1.1.2009 12:16pm
Bruce Hayden (mail) (www):
I too saw the attribution by Karl Rove on Fox News to the VC in general, and in particular to that UCLA law professor who has a blog that cited Powell v. McCormack.

At one time, I thought that the indication of EV having made it were his WSJ articles. But this is a step up, with the "Architect" citing him and his blog as legal authority on one of the most watched cable news shows.
1.1.2009 12:21pm
LM (mail):
Bruce Hayden,

Until Barack Obama is sworn in as president, there is currently one black member of the Senate.

There are currently no black members of the Senate.
1.1.2009 2:35pm
STepper (mail):
Two questions do not seem to have been ventiliated.

First, is Powell v. McCormack good law. Was it correctly decided. (It was a 7-1 decision and that one dissent looks more like a concurrence to me.) Abe Fortas recused himself.

Second, would the current Supreme Court, with its originalist bent, decide the case the same way? Putting aside being mindful of precedent, I count 5 noses (the usual suspects and Justice Kennedy) for a more "faithful" adherence to the text of the constitution, with Justice Scalia writing the opinion and telling us that the language means that each house is the sole and exclusive judge of these things. (Yes, there is irony in adding words that are not there, but Justice Scalia has done it before, as recently as last Term.) I also see Justice Breyer moseying over for a 6-3 decision.
1.2.2009 8:12am
gerbilsbite:
Stepper, I think you have the count wrong. I see Roberts, Alito and Kennedy thinking that Powell was decided with good logic and voting to expand the precedent. I see Scalia arguing that the Senate's judgment is bound by Section 4 and the 17th Amendment in determining if the "elections" or "returns" are sufficient, ordering them to seat Burris, and Thomas concurring with that. And I just can't see Breyer supporting a decision that allows the Senate to exclude people chosen for membership through due process--he'd see it as antithetical to his concept of participatory government (or "active liberty"). I see at least 6-3 in Burris's favor, with the plurality backing an expanded reading of Powell.
1.3.2009 11:28pm

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