One day till this year's Game of the Century. Tomorrow I will provide a comprehensive preview of the Florida-Oklahoma game. It's what you would expect from the top college football covering law and politics blog.

It won't be objective of course. Go Gators!

This is an Open Thread.

At this point, it seems there is a good deal of doubt about whether the Senate truly believes that a Senatorial appointment by Illinois governor Rod Blagojevich is so tainted that it should exercise its power under Article 1, Section 5 of the Constitution and not seat Roland Burris. If that is so, then this controversy should be brought to an end and Burris should be seated forthwith. I would disagree with the Senate's assessment, but the Constitution provides that power to the Senate, not to me. I do disagree with the argument presented by Walter Dellinger for Senatorial minimalism:

It is only a decision to exclude Mr. Burris that would lead to a continuing dispute about whether the Senate had the authority to reject the choice of a sitting governor. The Senate can avoid this constitutional quagmire entirely by agreeing to seat Mr. Burris, a respected public servant no one has accused of any wrongdoing.

Mr. Dellinger clerked for Justice Hugo Black when Powell v. McCormack was decided. It is interesting that Dellinger does not discuss the fact that the Court could have avoided the constitutional question and not decided the Powell case, which was moot in its essential question, whether Powell would be seated in the 90th Congress. Dellinger writes:

American Prospect received a copy of the first ten bills that Sen. Harry Reid will seek to have passed in the Senate.

There's not a crime bill among them.

Democrats now control both houses of Congress with a Democratic president -- for the first time in 16 years.

The House stands at 256 to 178 with one vacancy. If Al Franken is sworn in, Dems will hold 59 seats in the Senate.

Jeffrey Skilling, sentenced to 24 years in prison in the Enron case, had his conviction affirmed today by the 5th Circuit Court of Appeals -- but the Court said the trial judge erred in his sentencing calculations.

The trial judge bumped Skilling four levels for "substantially jeopardizing the safety and soundness of a “financial institution.” The appeals court said that was improper because there was no evidence the Enron Corporation Savings Plan and the Employee Stock Ownership Plan
are "pension plans" or “financial institutions” and any doubt must be resolved in favor of Skilling. It said "We are unprepared to declare every corporate retirement vehicle a “financial institution.”

Skilling must be resentenced. His guidelines now will be level 36 and Criminal History Category 1 or 188 to 235 months. Since the court initially sentenced him to the bottom of the range, I expect it will do the same on resentencing, resulting in Skilling's sentence dropping from 240 months to 188 months. [More...]

Sen. Diane Feinstein has decided that Roland Burris should be seated:

Sen. Dianne Feinstein rejected the reasoning that all of the chamber's Democrats, herself included, had cited in a letter last week — that corruption charges against Burris' patron, Illinois Gov. Rod Blagojevich, tainted his appointment. "Does the governor have the power, under law, to make the appointment? And the answer is yes," said Feinstein, chairwoman of the Senate Rules Committee, which judges the credentials of senators.

Funny, less than a month ago, Feinstein signed a letter saying the opposite:

Please understand that should you [Blagojevich] 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.

Begging the question, does Feinstein read the letters she signs?

Speaking for me only

Problem Number 1, acting, as Erwin Chemerinsky does, if your judgment that the Senate would be ill advised to reject Roland Burris, the Blago Farce appointee, is the equivalent of violating the Constitution. Chemerinsky writes:

The desire of Senate Democrats, and even Obama, to keep Blagojevich from picking the new senator from Illinois is understandable -- a federal attorney arrested the governor on charges of trying to sell the appointment for personal gain. Although Burris is untainted by the scandal, any selection made by Blagojevich is suspect. But the taint of Blagojevich's alleged crimes does not justify ignoring the Constitution.

Not seating Burris, pursuant to the Article 1, Section 5 of the Constitution is the opposite of ignoring the Constitution. It may be that the interpretation of the Constitution forwarded by Senate Democrats is some day found to be incorrect by the Supreme Court. I doubt that day will come. But clearly the Senate is not ignoring the Constitution here. We all can have our judgment on whether it is wise for the Senate to do this, but it is absurd to argue that because the Senate disagrees with your judgment that it is acting unconstitutionally. More . .

The Framers of the Constitution probably saw no need to define the characteristics of a jury when they guaranteed criminal defendants the right to a jury trial because it was commonly understood at the time that a jury consisted of twelve persons who needed to arrive at a unanimous verdict to find guilt. In 1970, however, the Supreme Court decided that six jurors were good enough, although it later concluded that five were insufficient. Despite that decision, 47 states and the federal government still require a twelve person jury in serious felony trials.

William Bolivar Deltoro, convicted of sexual assault by a Florida jury of six and sentenced to life, is asking the Court to reconsider the 1970 decision. As Steven Calabresi and Michael Saks argue, the Court should take the case and correct its erroneous precedent.

[more ...]

Local governments generally deny that they use traffic tickets to raise revenue, but two economists who reviewed tickets issued in North Carolina drew conclusions that tend to confirm a common suspicion: traffic tickets are more about generating dollars than public safety.

Traffic tickets go up significantly when local government revenue falls, they found. Their study showed for the first time evidence of how "local governments behave, in part, as though traffic tickets are a revenue tool to help offset periods of fiscal distress." ...

Controlling for other factors, a 1 percentage point drop in local government revenue leads to a roughly .32 percentage point increase in the number of traffic tickets in the following year, a statistically significant connection.

Rising unemployment rates also correlate with increased ticketing. As the recession pinches local budgets, expect more traffic citations to be issued. The lesson: drive carefully, don't roll through stop signs, and invest in a good radar detector.

The Senate has refused to seat or swear in Roland Burris because his appointment was not signed by the Illinois Secretary of State.

Mr. Burris made his way to the office of Nancy Erickson, the secretary of the Senate, to whom he presented his credentials. Afterward, the aspiring legislator stood in the rain outside and declared, “Members of the media, my name is Roland Burris, the junior senator from the State of Illinois.”

...Ms. Erickson had already said that the appointment letter forwarded by the governor’s office did not comply with Rule II of the Senate’s standing rules, which requires signatures of both the governor and the secretary of state.

Jesse White, Illinois Secretary of State, refused to sign the appointment papers because of the Blagojevich criminal matter.

Glenn Reynolds writes:

THEY TOLD ME THAT IF WE TOPPLED SADDAM HUSSEIN, gas would be cheaper than it was in 2001. And they were right!

Professor Reynolds is confused regarding the cause of the drop in gasoline prices. The Iraq War did not lower gas prices (in fact, there is strong evidence it raised petroleum prices). The Bush Depression did. From the article cited by Reynolds:

The tumble in [gasoline] prices, from a high of more than $4.05 in early July, has meant incredible savings. Republicans said Democrats should issue a mea culpa. "I wonder if the same people who blamed the president for the increase in prices will now credit him with the reduction in prices. It's only fair," said Don Stewart, spokesman for Senate Minority Leader Mitch McConnell, Kentucky Republican.

(Emphasis supplied.) Indeed, Bush and Republicans should be thanked the way Hoover and Republicans were thanked for driving down commodity prices during The Great Depression - by decades in the political wilderness.

Speaking for me only

Two new TalkLeft reader diaries to recommend:

Steve M on the legalities of the coming Minnesota Senate contest.

Dalton Hoffine on Rawls and international law.

This is an Open Thread.

Writing about Leon Panetta's selection as CIA Director, Ann Althouse quotes a misinformed (Brennan's statements in support of rendition and torture after leaving the CIA are what did him in, not his tenure at the CIA) NYTimes piece and draws and interesting conclusion - inside the CIA, they can not say no to torture:

[Quoting the NYTimes piece] "[Obama's] first choice for the job, John O. Brennan, had to withdraw his name amid criticism over his alleged role in the formation of the agency’s detention and interrogation program after the Sept. 11 attacks."

By contrast, Panetta wrote a piece in The Washington Monthly that said: "We cannot and we must not use torture under any circumstances. We are better than that." That's very nice, but . . . [i]f you aren't on the inside, dealing with the details and responsible for outcomes, it takes nothing to say that, and in fact, it's the most obvious opinion that anyone would take. . .

(Emphasis supplied.) Consider what Ms. Althouse is saying - that if you are "on the inside," saying no to torture is impossible. It seems to me that if that is true, then clearly the CIA could not have leadership come from inside its shop. More . . .