A Short Lived Concern For "The Rule Of Law"

Earlier today, TalkLeft friend (and, I hope, still my friend) Jane Hamsher was accusing Harry Reid of disregarding the rule of law. In her latest post, she seems to be berating him for "sabotaging" JedL's plan to disregard the rule of law:

That Harry Reid is one smart cookie, ain't he? Well, that remains to be seen. Because the push to seat Al Franken provisionally this Tuesday could now be problematic:

In a conference call with reporters, Cornyn said Republican Senators fear that Senate Democratic leaders may try to seat Franken next week even if an official winner has not been declared in the election. But the Texan said Republicans are prepared to launch a filibuster to prevent Franken from being seated until state officials declare a winner and all legal challenges are exhausted. [. . .]

The Republicans have been planning to block Franken for some time, and Reid should have factored that in when he drew up his Burris game plan. Until Reid announced he'd refuse to seat Burris because he didn't have a certificate, the Dems had an argument that the Senate Republicans were just playing politics.

But what about the rule of law? I thought Reid was not supposed to disregard the rule of law?

Of course, Reid is not disregarding the rule of law in any way in the Blago/Burris Farce. But trying to seat Franken without a certification of election from the State of Minnesota would be disregarding the rule of law. Interestingly, not once has Al Franken even mentioned anything like what JedL is proposing. Franken's team has been very respectful of Minnesota law and all this scheming by some to have him seated before he is the certified winner of the Minnesota Senate election is likely for naught. But I must ask our good friends, whither concern for disregard of the rule of law?

Speaking for me only

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    Reid (5.00 / 1) (#2)
    by Crusty Dem on Fri Jan 02, 2009 at 06:38:19 PM EST
    I wasn't a fan of Reid telling Blagojevich that he wouldn't seat his senate choice, I thought it took the pressure off the Illinois house (they could've intervened to force a special election rather than letting him make the pick, but why bother if the Senate leader says he'll take care of it).  Unless Blagojevich resigned or the Illinois house disposed of him, he was going to appoint someone, Reid's talk results in the confrontation moving from the Illinois house to the courts, where the final outcome is uncertain.

    As far as seating Franken is concerned, that's just idiocy.  There's no need for that impatience and it's a move that would look terrible, particularly to the people of Minnesota..

    Illinois house has moved up impeachment (none / 0) (#3)
    by Big Tent Democrat on Fri Jan 02, 2009 at 06:39:45 PM EST
    which is great (none / 0) (#18)
    by Crusty Dem on Fri Jan 02, 2009 at 09:47:41 PM EST
    As a native Lincoln stater, I sure wish they'd done this immediately, or at the very least forced a special election for the senate seat..

    It seems to me (5.00 / 1) (#19)
    by Alien Abductee on Fri Jan 02, 2009 at 10:27:28 PM EST
    these blogger objections are based on a desperate wish to get back to the rule of law, and they're taking the position they are re Burris to bend over backwards to try to make that point in a case that shows it clearly because it goes against their own side. They're trying to show they side with the rule of law over partisanship. They want to show they're not captive to Dem interests but to principle.

    That's not a bad thing. But it is leading to some immense reaching to make connections to things that are not really connected to the issues raised by the Blago situation, like Lieberman and Franken, Miers and Rove, Ted Stevens, Larry Craig, Alito, the Military Commissions Act, etc. Those were all failures where the Senate failed to act as they might have, but so what? The Dem Caucus is acting now, and their actions are proper. Fighting them now because they failed to act properly in the past is not very rational or goal-focused. It's more about working out emotions over past hypocrisy and disappointment from Dems. Thus silly parallelisms like Bower's "So, Senate Democrats will take aggressive action to deny a Democrat from being seated, but not take aggressive action to seat a Democrat." Um, they should do that if the circumstances in each case are different and call for them to do that.

    What they  need to be convinced of is that the actions being taken by  Dems now are the best expression of the rule of law, and that fighting them on it is counterproductive. It would have been easier if Dems had actually done the clearly right thing in IL and called a special election (though it would have been a politically stupid thing because they might well have lost the seat), and if Reid hadn't called on the IL SoS to do something legally questionable (refuse to certify the appointment). But that doesn't mean that not seating Burris is just more of the same corruption. It might be second best to a special election, but it's better than seating a product of a tainted process.

    It's not as if there's any perfect solution under the circumstances, or indeed any cut-and-dried "right" way to proceed. It's just us humans muddling through.

    It's simpler (none / 0) (#24)
    by Warren Terrer on Sat Jan 03, 2009 at 11:57:33 AM EST
    They like Burris, they like Franken. They want them both in the senate.

    Franken (none / 0) (#26)
    by Alien Abductee on Sat Jan 03, 2009 at 01:44:54 PM EST
    I can see, he's been a netroots favorite for a long time. But Burris? Five days ago it was Burris Who? Not much time to get emotionally attached, especially when a lot of what has come out about him is so mockable. Personally, I think if he was fool enough to accept Blago's offer that's sufficient grounds for disqualification all by itself.

    Here's (none / 0) (#27)
    by Warren Terrer on Sat Jan 03, 2009 at 01:48:56 PM EST
    Saw that (5.00 / 1) (#28)
    by Alien Abductee on Sat Jan 03, 2009 at 02:06:04 PM EST
    I'm not sure "statesman" is the first word that springs to mind re Burris.

    And so much for Bob's judgment - his entire argument seems to be that Burris won't run again and he'll be uncontroversial. So much for that.


    Illinoisans knew since November 6 (none / 0) (#32)
    by Cream City on Sat Jan 03, 2009 at 05:16:56 PM EST
    and AP reported it then, for the rest of the country that cared enough to read it, that Burris spoke up for the seat immediately after the election.  And, of course, Illinoisans know Burris well, and many consider him historic for his win and hardly mockable.

    The elitism of the blogs is what is evident -- and mockable.


    Oh yes (1.00 / 1) (#33)
    by Alien Abductee on Sat Jan 03, 2009 at 06:17:52 PM EST
    Five-time failed candidate... out of government more than a decade... asked by some black ministers (not by anyone in the governor's office) if he'd be interested in the job. Obviously a front-runner from the get-go and only the elitism of the blogs kept them from caring.

    Just more of the usual misleading tripe from you.


    You really don't know (none / 0) (#34)
    by Cream City on Sat Jan 03, 2009 at 08:09:44 PM EST
    the AA community if you so easily dismiss a man supported by a sizeable group of black ministers.  

    So you're just a fool.  Go away.


    Good try at misdirection, as usual (none / 0) (#35)
    by Alien Abductee on Sat Jan 03, 2009 at 08:56:46 PM EST
    There was no reason for the blogs to be concerned with him before Dec. 30 because he wasn't a likely candidate. But all you want to do is spread smears. The worst, most Fox News type interpretation of everything, as long as it makes Dems, the Dem leadership, and especially Obama look as foolish, corrupt, and incompetent as possible. You're just a malicious troll. You go away.

    IMHO, we all need to take a minute (3.50 / 2) (#1)
    by scribe on Fri Jan 02, 2009 at 05:59:18 PM EST
    and maybe a stiff drink, calm down, and relax.

    It's been obvious for weeks that Franken would not have a certified election result until after January 6.

    He will be around the Senate, I'm sure, if only as a special guest (I'll bet the Senate Rules allow something like that).  Cormyn is going to try his darndest to gum things up b/c the Rethugs are more interested in making Obama fail than they are in helping the country get out of this rut.  The Rethugs are being kind of like the kid in kindergarten who has the flu - in their case, it's the failure bug - and is hell-bent on spreading it to everyone else.

    What everyone needs to recognize is that, in the absence of precedent (and as I understand it Senate precedents are a bit sparse on this issue) or in the presence of a majority, the Rethugs will not have much of a leg to stand on.  They can carp and whine, make a lot of noise, and try to obstruct, but they will lose.  The key is to make it so they lose in a public manner where it is clear they lost.

    In short (and oversimplifying a bit), in the Senate, the Rule of Law is 51 votes.  The Dems have that, Cormyn knows it and knows there's nothing he can do about it.

    If nothing else, this will give the next generation's McCain something to bithc about in his ghostwritten autobiography, just like this generation's McCain complains that all the nastiness on Capitol Hill descended from the 1984 or 1985 hearings in which the Democrats seated a representative who won a closely contested election in Indiana.  Conveniently, McSame does not mention all of then-backbencher Newt Gingrich's howling-angry speeches delivered to an empty chamber but communicated to proto-wingnuts everywhere via CSPAN in those early and mid-80s days, for having debased the currency of comity on Capitol Hill.

    Frankly, one of Tip O'Neill's biggest mistakes was not shutting off that avenue for Gingrich to poison the well.  Gingrich made no such mistake when he took over as Speaker - and he cut off the means he'd used to ascend.  No more midnight speeches on CSPAN.

    But, every authoritarian myth needs a starting point where the authoritarians are victimized by their enemy.  If they can't find one, they'll make it up.  That's what Rethuglicans do best.

    So, let's all take a chill and do something productive.

    Obama was an idiot (1.00 / 0) (#8)
    by Salo on Fri Jan 02, 2009 at 07:09:04 PM EST
    To resign, illinois rewards corrupt embarrasments, and the national leadership is politically inept. Two years of hell await.

    Hindisight is 20/20 (5.00 / 0) (#11)
    by Big Tent Democrat on Fri Jan 02, 2009 at 07:18:38 PM EST
    It's a bad start. (none / 0) (#13)
    by Salo on Fri Jan 02, 2009 at 08:49:23 PM EST
    Very poor marks very pooor

    Really? (none / 0) (#4)
    by Steve M on Fri Jan 02, 2009 at 06:40:13 PM EST
    But trying to seat Franken without a certification of election from the State of Minnesota would be disregarding the rule of law.

    I'm not saying they will do this, of course, but if Franken shows up and claims to be the winner of the election - doesn't the Constitution make the Senate the final judge of that?  One thing I thought I learned from the Burris discussion is that formal certification doesn't seem to have any actual legal significance as far as the Constitution is concerned.

    The Senate can do it (5.00 / 1) (#5)
    by Big Tent Democrat on Fri Jan 02, 2009 at 06:47:38 PM EST
    by DISREGARDING Minnesota law and its own rules.

    To wit, Senate rules require the presentation of a certificate of election to office.

    Franken does not have that and will not have that.

    Now, I know your game today Steve. Am I saying the Senate can not do it? No I am not. They can.

    I am saying they should NOT do it because to do so is to disregard the rule of of law for no good or compelling reason.

    Not seating Burris is proper use of the power, imo, BECAUSE Blago, who tried to sell the Senate seat, appointed him.

    If you are going to do a Danby imitation, at least come up with something better than this.


    I don't have a game (none / 0) (#6)
    by Steve M on Fri Jan 02, 2009 at 06:49:36 PM EST
    If the Senate rules say that, then that's the answer to my question.  I concede the point.  No need to be nasty.

    My apologies (none / 0) (#7)
    by Big Tent Democrat on Fri Jan 02, 2009 at 06:50:35 PM EST
    I thought you knew that.

    do the voters even matter anymore? (none / 0) (#25)
    by S on Sat Jan 03, 2009 at 01:34:19 PM EST
    after the democratic primary season we went thru, with all the machinations, tricks, etc...now we have the Dems in complete control and we are not even out of the gate yet and the dems look not only very elite, but also corruptable...so sorry to say...

    Blago, Harry Reid, the NY Senate seat, 'you know', the one that is symbolically up for sale...and now the posturing of Reid and the spectacle of the new Democratic senate...special election so the voters have a say?...no way...appoint competent elected, experienced leaders, forgetaboutit!  the powerful want their own and that's it...

    sorry, they do not give a damn what the voters think or want...this is all inside gamesmanship for the insiders and their selected group of 'friends'

    how does any of this inspire trust or confidence...Reid, Blago...bla, bla, bla...it is all the same game...

    I am beginning to wonder if Blago wasn't set up...the 'timing' for Illinois politics was very convenient...I do not put anything past our leadership these days...

    http://www.suntimes.com/news/metro/blagojevich/1360191,harry-reid-blagojevich-jesse-jackson-010209.a rticle


    Voters? (none / 0) (#29)
    by squeaky on Sat Jan 03, 2009 at 03:31:33 PM EST
    What do the voters have to do with appointments? Did you miss something?

    The voters get to decide whether the appointments and appointers stay in office next general election.


    that's my whole point (none / 0) (#30)
    by S on Sat Jan 03, 2009 at 04:16:57 PM EST
    ...it is an insider's game...and you don't count

    it's a rigged system that perpetuates insiders...  

    btw...Illinois had the option for a special election...durbin was on tv pushing for one...until they realized they might lose...

    what a mess...dems look like a bunch of fools...and with all these serious problems we have...the world is falling apart and the dems are creating distraction...petty fools...


    Lobby For Changing The Constitutions (none / 0) (#31)
    by squeaky on Sat Jan 03, 2009 at 04:50:57 PM EST
    ...it is an insider's game...and you don't count
    it's a rigged system that perpetuates insiders...  

    The framers have rigged the game, is that what you are arguing?

    As it stands vacancies in COngress are covered by the seventeenth amendment and the details are set by your state constitution regarding special election provisions.


    Who the heck is JedL? (none / 0) (#9)
    by ruffian on Fri Jan 02, 2009 at 07:15:08 PM EST
    His speculations as to what Franken might do are irrelevant. I don't believe Franken will do anything thuggish, like showing up before he is certified. I hope not anyway. I'm sick of people acting like, or maybe hoping,  Franken is using his Senate run as some kind of performance art.

    well... (none / 0) (#10)
    by lilburro on Fri Jan 02, 2009 at 07:18:28 PM EST
    they aren't going to seat Burris, even if he has the certificate, because they're handing his case over to the Senate Rules Committee.  That's due to the special circumstances of his appointment.

    Franken is on a different track.  They're counting the ballots and contesting them, but I don't hear anyone saying the election is rigged.  They are faithfully following the process.  Without the certificate, there are no returns, right?  The process is not completed.

    These are two different things.

    You know (none / 0) (#12)
    by Big Tent Democrat on Fri Jan 02, 2009 at 07:19:57 PM EST
    I missed that obvious point.

    The Senate does not have jurisdiction over the Minnesota Senate election yet as no returns have been presented to it.


    If you watch C-SPAN in the days (none / 0) (#14)
    by andgarden on Fri Jan 02, 2009 at 08:59:41 PM EST
    after special elections for the house, you will often hear the clerk say "according to the unofficial returns" and the then senior member of the delegation will move to have the member-elect sworn in.

    But that never happens when the returns are in dispute.


    For that matter, has (none / 0) (#15)
    by Cream City on Fri Jan 02, 2009 at 09:12:57 PM EST
    the Electoral College met yet?  We don't actually have a president-elect until they do, correct?

    I.e., good point, as the same principle applies -- there are processes to be followed (crazy as the Electoral College process is).  And the process for an elected Senator (may it be Franken) is different from the process for an appointed Senator.  In both cases, though, the state's secretary of state certifies . . . or in the case of Illinois, refuses to do so.  Minnesota's has not refused to do so, as it has no results yet.

    Sort of talking myself through this, trying to keep it straight in my mind, before some media muddle it up on Tuesday, I bet, and continue to try to treat these as comparates.


    Yup, EC has met (none / 0) (#16)
    by andgarden on Fri Jan 02, 2009 at 09:15:23 PM EST
    Votes counted on The 8th.

    But the link says January 8 (none / 0) (#20)
    by Cream City on Sat Jan 03, 2009 at 05:10:19 AM EST
    is the official vote, when they're cast in Congress.  So they've only met in the states.

    Electoral College has met. (none / 0) (#17)
    by oculus on Fri Jan 02, 2009 at 09:16:04 PM EST
    See link above; not officially yet (none / 0) (#21)
    by Cream City on Sat Jan 03, 2009 at 05:11:02 AM EST
    as the process ends on January 8.

    Wow - (none / 0) (#22)
    by lilburro on Sat Jan 03, 2009 at 05:54:01 AM EST
    you know, yesterday I was thinking to myself, this is just a disagreement among blogs, nothing to get upset about.  People want to attack Reid about "the rule of law" - OK.  If you must.

    But then I read something so completely misinformed -

    Trapper John

    "Moreover -- not that it's all that relevant to the question of whether Burris ought to be seated -- Burris has not been at all implicated or tainted by the Blago investigation, has no more of a history of ties with Blago than does Barack Obama, and is likely to serve for just two years as a placeholder. Finally, refusal to seat Burris will deny Illinois full Senate representation for months, as it's now clear that Blago isn't resigning anytime soon, and the Illinois ledge doesn't appear ready to move on a special election bill.

    In other words, there's not much of a legal argument to avoid seating Burris, and not a lot in the way of ethical grounds, either. Sure, Blago sucks, but Burris isn't Blago, a Blagoite, or even mentioned in the Fitzgerald documents. It's not as if Blago had appointed Jesse Jackson Jr., or even Valerie Jarrett. Burris isn't just completely untainted by the investigation -- he's untouched, unmentioned. And as the Senate Dems waste valuable political capital by engaging in the sideshow of forcibly barring Burris from the chamber, the first days of the new Democratic majority will be spent not on the people's vital business, but on an unnecessary circus. One that seems likely end up with egg on the faces of the Democratic leaders.

    As always, terrific priority setting from the Senate leadership.  Bodes really well for the next Congressional agenda."

    I guess Trapper John missed the memo that Blago is getting impeached.  The people of Illinois are not going to be denied representation for months -I agree with those who say Quinn will appoint someone sometime this month.  And the Senate will choose that duly certified person over Burris.  Which they can do.  

    I really hope, for his own sake, that Burris has better lawyers than his advocates on the blogs.

    And the wonderful thing is this - Trapper John ends by saying that law isn't important, it's now about ethics and politics:

    UPDATE: To be clear, I'm aware that there are astute folks out there who have developed arguments by which the Senate could attempt to exclude Burris.  But no one thinks that those arguments are guaranteed to prevail, and any attempt to exclude Burris will undoubtedly result in interminable litigation -- which means that the sound and fury of the Burris circus is likely to continue to inhibit the ability of the leadership to push a substantive agenda for weeks to come. The question isn't really whether the Senate can try to exclude Burris -- it's whether they should. And the ethical and political merits argue in favor of putting the thing to rest by just seating the duly appointed Senator from Illinois.

    All this, in a post that begins with a John Cole quote, "We are a nation of rules, after all."