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Burris Would Run for Reelection If Blago Farce Appointment Stands

Via BarbinMd (who is killing on this story btw), Roland Burris promised to run for reelection if his Blago Farce appointment is upheld:

[Burris] also ruled out a caretaker role; Burris said he would likely run in 2010 to keep the seat if his appointment sticks.

Allrighty then. In the interview with Lynn Sweet, Burris apparently said "we are the Senator." I am assuming the "we" he is referring to is he and Blago, because that is how the Republicans will certainly portray it.

Speaking for me only

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    In defense of Burris (5.00 / 1) (#3)
    by Saul on Sat Jan 03, 2009 at 12:21:35 PM EST
    I thought this blog statement by constitutional professor  Darren Hutchinson was an interesting one

    There are two other legal concepts looming in this situation. First, there is the case Nixon v US. In that case, the Senate impeached a federal judge who accepted a bribe to dismiss a criminal case. Nixon argued that the Senate failed to comply with the "impeachment trial clause" which provides that the Senate has the sole power to "try" impeachments. Judge Nixon argued that because a Senate committee conducted the fact-finding, evidence collection, hearing of testimony, etc., the "Senate" did not try him as mandated by the constitution.

    The Court held that the procedure the Senate uses to conduct the impeachment process presents a "political question," and it refused to reach the merits of Nixon's arguments. Well, sort of. A long part of the ruling seeks to demonstrate that the word "try" implies many different types of procedures and that the Senate process fell within this flexible framework. So the Court seemingly answered the question without answering the question.

    What does this have to do with Burris? Souter has an interesting concurrence that raises a hypothetical in which the Senate impeached under circumstances that blatantly violated due process -- such as a "coin toss." Souter suggests that the Court could intervene in that instance.

    So, even if the Senate has the authority to "review" the selection/election process, the question then turns to what standards should the Senate use, how deferential should the Court operate in the process, and is there a line that the Senate could cross that warrants judicial invalidation (such as a pre-announced decision that ANY candidate chosen by the governor is unacceptable).

    The second issue concerns federalism. Both Article I and the Seventeenth Amendment delegate the election of members of Congress and the filling of vacancies to state governments. The Seventeenth Amendment gives states the option of having a special election or allowing the governor to make the selection to fill a Senate vacancy. Illinois has chosen the latter route.

    Democrats refused to strip the governor of the power to make the appointment because they feared that a Republican could win the special election. They also knew they could not rush through an impeachment so they pursued the awful route of seeking a judicial invalidation of Blagojevich's office. When that failed, they now say they will rush through the impeachment process -- even though the prosecutor has asked the panel not to subpoena Obama administration officials, who are presumably "material witnesses" to the governor's defense and the allged "crime." In a move that resembles "Bush's due process," Democrats are leaning towards complying with the prosecutor's request. Cynically, Republicans want the opportunity to embarrass (ooops, question) Obama's staff.

    As messy as it is, the state process is playing out. The governor has not been convicted of a crime; the Illinois courts refused to declare him incompetent; the legislature did not strip him of the power to pick Obama's successor; the impeachment process is in an embryonic form; and the prosecutor has asked for three additional months to build a case. Why on Earth should the Senate veto the governor when the constitution gives the state the sole authority to make the selection?

    If the Senate intervenes, it will play the role of the Supreme Court in Bush v Gore. The Court appropriated Florida's constitutional and legislative authority over the recounts by enjoining them from taking place -- even under a uniform standard. Here, the Senate has basically said that nothing involving the governor is acceptable; accordingly, it is mandating a special election -- something the constitution does not give the Senate the authority to do.



    That strikes me as a rather obtuse argument (none / 0) (#11)
    by Big Tent Democrat on Sat Jan 03, 2009 at 12:38:19 PM EST
    consider these 2 points:

    "So, even if the Senate has the authority to "review" the selection/election process, the question then turns to what standards should the Senate use, how deferential should the Court operate in the process, and is there a line that the Senate could cross that warrants judicial invalidation (such as a pre-announced decision that ANY candidate chosen by the governor is unacceptable)."

    Most of this is right and exactly what I have been arguing. The obtuse part is in arguing that a "pre-announced decision" rejecting any Blago pick is somehow arbitrary. It is the opposite of arbitrary. It is founded on the principle that due to the fact that Blago tried to sell the seat, any pick he made would be irremediably tainted and that the Senate would likely reject any appointment for that reason, subject of course to whatever due process the Senate deemed proper.

    Arbitrary would have been waiting to see who Blago picked before stating the principle. I think Tribe made this point nicely. Burris was not pre-rejected. The PROCESS of Blago picking pre-rejected. this concept seems to be diffcult for some to grasp.

    Second:

    "The second issue concerns federalism. Both Article I and the Seventeenth Amendment delegate the election of members of Congress and the filling of vacancies to state governments. The Seventeenth Amendment gives states the option of having a special election or allowing the governor to make the selection to fill a Senate vacancy. Illinois has chosen the latter route."

    Excuse me, federalism works BOTH ways. State law can not dictate how the Senate is run.

    Or an even better retort - the Supremacy Clause. Article 1, Section 5 will trump any and all state laws.

    So excuse me, but this is actually one of the weakest arguments I have yet seen. do you have a link to it? I would like to read the excerpts in context.

    Parent

    He was making his comment on (none / 0) (#14)
    by Saul on Sat Jan 03, 2009 at 12:51:31 PM EST
    a blog that was discussing the pro and cons of what Reid could do.  Now I can't find it but he does have his own blog Dissenting Justice

    Parent
    I found that blog (none / 0) (#15)
    by Big Tent Democrat on Sat Jan 03, 2009 at 12:56:59 PM EST
    And a quick perusal informed me that it does not provide bona fide legal analysis.

    Example: "That taint argument also assumes wrongdoing by Blagojevich simply because a prosecutor accused him of committing a crime. Personally, we might "believe" that Blagojevich is guilty of a crime, but a criminal complaint is simply a set of allegations -- not facts.

    The constitution that I teach mandates that prosecutors prove allegations against defendants -- not that defendants prove their innocence. In other words, our constitutional culture assumes the innocence of the accused. Court doctrine treats the presumption of innocence as an essential element of a system of justice and ordered liberty.

    Senate Democrats, however, have discarded the presumption of innocence and are using the criminal complaint to disempower not only Blagojevich, but any candidate he selects for the position. But unless Burris bought the seat, the taint argument simply cannot apply."

    No Constitutional scholar could have made such a ridiculous argument regarding the political impeachment process. That is the rant of an emotional layman, not a scholar.


    Parent

    Are you disputing... (5.00 / 1) (#23)
    by pmj6 on Sat Jan 03, 2009 at 01:20:31 PM EST
    ...Darren Hutchinson's credentials as a Constitutional scholar? I get it, you vehemently disagree with his interpretation of the Constitution, but to call him an "emotional layman" strikes me as, well, a little emotional.  

    Parent
    I know nothing about him (none / 0) (#29)
    by Big Tent Democrat on Sat Jan 03, 2009 at 01:36:20 PM EST
    I found that the discussion of impeachment as a Constitutional issue was emotional and not constitutional scholarship.

    Sorry to have hurt feelings in this thread.

    Parent

    I looked him up (none / 0) (#35)
    by Big Tent Democrat on Sat Jan 03, 2009 at 01:57:53 PM EST
    He is indeed a Professor of Constitutional Law at American University.

    I believe that the blog post I commented on is hardly a scholarly rendering with regard to the impeachment process.

    I reserve comment on his scholarship in other respects.

    Parent

    Sarcasm? (none / 0) (#18)
    by damitajo1 on Sat Jan 03, 2009 at 01:09:11 PM EST
    A criminal complaint is not a finding of fact.  Are you a lawyer? Hopefully you are just being sarcastic.  If a criminal complaint was purely factual, we would have no reason to conduct trials...

    Parent
    Does the passage I quote (none / 0) (#30)
    by Big Tent Democrat on Sat Jan 03, 2009 at 01:38:24 PM EST
    strike you as a scholarly discussion of the Constitutional impeachment process? It does not to me.

    Are you positing that the Constitution itself creates a presumption of innocence in the impeachment process? If so, could you point me to your basis for this assertion?

     

    Parent

    Obtuse? Weak? Give me a break. (none / 0) (#17)
    by damitajo1 on Sat Jan 03, 2009 at 01:07:54 PM EST
    Federalism works both ways - but the text of the constitution delegates the selection process to the states.  That has existed since the founding of the nation.  It is unclear why you, therefore, believe this one of the "weakest" arguments you have encountered. Several constitutional law scholars are raising federalism concerns, and the argument you consider "obtuse" is discussed by the Supreme Court in another political question doctrine decision -- Nixon v US. Powell v McCormack - the case most people have been discussing - was a political question doctrine case as well.

    Parent
    I feel confident (none / 0) (#28)
    by Big Tent Democrat on Sat Jan 03, 2009 at 01:35:11 PM EST
    that the 17th Amendment was not discussed in Powell v. McCormack (I admit I missed the federalism discussion therein as well) or Nixon v. US. (where the issue was the impeachment of a FEDERAL judge). could you quote the discussion for me?

    I certainly agree that the political question doctrine is relevant here, though I would agree with those who think that it is really going to be the second step of the discussion - to wit, the court will first decide the power the Senate has pursuant to Article 1, Section 5.

    Once the scope of that power is determined, then the question of judicial review and the political question doctrine will come into play - whether there will be full deference, any deference, etc. or not.

    In that sense, I think the reference to the Souter concurrence in Nixon is interesting and on point. I think the comparison of Souter's coin-flip analogy to the enunciation of a principle regarding BLAGO appointing anyone is mistaken.    

    Parent

    I think (none / 0) (#39)
    by Big Tent Democrat on Sat Jan 03, 2009 at 02:06:51 PM EST
    I want to rephrase my description of Professor Hutchinson's analysis  and merely describe it as wrong.

    Parent
    another thing on federalism (none / 0) (#20)
    by damitajo1 on Sat Jan 03, 2009 at 01:15:47 PM EST
    Sorry, but you apparently have not been following Supreme Court jurisprudence.  The Supremacy Clause certainly makes federal constitutional law, then statutes, etc., the Supreme Law of the Land. BUT -- if the constitution delegates an issue to the STATES, then state authority over that issue trumps the feds, via the Supremacy Clause.  In other words, the federal law actually gives states dominion over many issues.  That's why the court has struck down various laws throughout history as exceeding the scope of federal authority. Finally, some of you are begging for "sources." If the material is common, like the 17th Amendment, then expend a little energy and google it!

    Parent
    Show me some reason why I should believe (none / 0) (#22)
    by andgarden on Sat Jan 03, 2009 at 01:20:05 PM EST
    that the 17th amendment invalidates Article 1, Section 5.  

    Parent
    You are right (none / 0) (#26)
    by Big Tent Democrat on Sat Jan 03, 2009 at 01:29:14 PM EST
    I do not follow Supreme Court jurisprudence.

    No need to engage me.

    Brilliant analysis! Excuse me for differing from your view.

    One point though, I take it it is your view that the 17th Amendment altered Article 1, Section 5. could you expound on that please?

    Parent

    While I disagree with Professor Hutchinson's (none / 0) (#38)
    by Big Tent Democrat on Sat Jan 03, 2009 at 02:05:57 PM EST
    analysis, quite strongly in fact, I regret my word usage here.

    My apologies to Professor Hutchinson.

    Parent

    I agree (4.66 / 3) (#1)
    by lilburro on Sat Jan 03, 2009 at 12:19:57 PM EST
    BarbinMD has been doing a great job.  And her posts are hilarious.

    Burris must be crazy.  

    "We are the Senator ... (none / 0) (#2)
    by Robot Porter on Sat Jan 03, 2009 at 12:20:55 PM EST
    we haven't been waiting for."

    ;)

    "We have met the enemy . . ." (none / 0) (#8)
    by oculus on Sat Jan 03, 2009 at 12:31:18 PM EST
    I wonder if Burris favored the editorial (none / 0) (#4)
    by oculus on Sat Jan 03, 2009 at 12:24:40 PM EST
    "we" prior to his appointment.  Interestingly, he says Durbin urged him not to accept the appointment if offered.

    hilarious (5.00 / 2) (#6)
    by lilburro on Sat Jan 03, 2009 at 12:29:11 PM EST
    "Burris said a reason he accepted the offer from Blagojevich was 'to take this issue off the plate of the people of Illinois, and they can go on with other problems.'"

    I hope he is interviewed continuously in the next few days.  If he amps up the "are-you-effing-kidding-me" factor, that will help the Senate politically.

    Parent

    but not legally (1.00 / 1) (#21)
    by damitajo1 on Sat Jan 03, 2009 at 01:18:22 PM EST
     WHY he is taking the job does not determine whether his appointment was legal or not. The fact remains that without an impeachment or law stripping the governor of the power to make the appointment (too late!), the appointment of Burris is valid under state law. Period. If the Senate wants to block it -- while welcoming the tainted Kennedy into its chambers, then  so be it.  But while liberals were screaming over McCain's "seven" homes, they are salivating over the Kennedy dynasty and its wealth.

    Parent
    I see, so as a Republican (5.00 / 1) (#24)
    by andgarden on Sat Jan 03, 2009 at 01:21:10 PM EST
    you think your party should fight to seat Burris? Interesting.

    Parent
    Here is a snippet from Burris's (none / 0) (#10)
    by oculus on Sat Jan 03, 2009 at 12:33:06 PM EST
    Wiki entry:

    Senator-designate
    Taking office
    Uncertain whether or when he will be seated
    Succeeding Barack Obama


    Parent

    He and Durbin are on ABC tomorrow (none / 0) (#5)
    by nycstray on Sat Jan 03, 2009 at 12:26:41 PM EST
    A.M. with George S.

    I may have to pull up a cuppa coffee and a chair for that one, lol!~

    Parent

    Y'know, I expected that the Repubs (5.00 / 1) (#9)
    by Cream City on Sat Jan 03, 2009 at 12:31:40 PM EST
    would have a field day, if Obama was elected, with the Chicago machine.

    I didn't expect that the Dems would do it to themselves.  Silly of me.  The Dems always do it to themselves.  

    Parent

    It sure is an interesting twist (none / 0) (#13)
    by nycstray on Sat Jan 03, 2009 at 12:42:29 PM EST
    I wasn't expecting the CM to come into play at this point or by the Dems, lol!~  

    Parent
    If, a big if, the Dems (none / 0) (#16)
    by Cream City on Sat Jan 03, 2009 at 01:07:38 PM EST
    are doing this on purpose -- blowing up the Blago mess to make it even worse -- than the only rationale I can see is to deflect attention from the appointment nonsense in New York State.  

    Or maybe from the appointment in Colorado of another newbie to politics?  But at least no one has suggested that guy hardly ever voted.

    Parent

    I don't think they are doing it (none / 0) (#31)
    by nycstray on Sat Jan 03, 2009 at 01:49:22 PM EST
    on purpose, lol!~

    To me, it highlights the NY mess (but I live here). It does deflect from more coverage, I think, as I don't see the media digging in any more than surface stories that are mostly about Carolyn and not much attention is being put on the others who could fill the seat. If they actually put the whole thing in perspective and reported on it, we would have Senate Appointment Farce, II

    Parent

    Train derailed in Chicago (none / 0) (#41)
    by Salo on Sat Jan 03, 2009 at 02:51:53 PM EST
    Democratic party train destroyed.

    Parent
    are they on together? (none / 0) (#7)
    by lilburro on Sat Jan 03, 2009 at 12:29:58 PM EST
    I may have to tune in as well.

    Parent
    Just checked (none / 0) (#12)
    by nycstray on Sat Jan 03, 2009 at 12:39:11 PM EST
    Looks like Burris is on first and then Durbin/MCConnell

    Parent
    Let's keep it simple. (none / 0) (#19)
    by scribe on Sat Jan 03, 2009 at 01:12:00 PM EST
    This is Blago.  Here's another view.

    Thiw is what Burris will be, if the Blago appointment stands.

    Did anyone think Would-be Senator Quixote Burris would turn down the opportunity to stay?  After Blago dropped the winning lotto ticket at his feet and told him to pick it up?

    Puhleeze.

    I doubt it... (none / 0) (#25)
    by pmj6 on Sat Jan 03, 2009 at 01:25:09 PM EST
    Burris seems to have had a long career in politics in his own right, he's not somebody picked out of nowhere to be a stooge.

    But if the Dems don't like it, they can always run a challenger in the primary.

    Parent

    Anyone with the lack of sense (none / 0) (#27)
    by scribe on Sat Jan 03, 2009 at 01:31:40 PM EST
    to take the appointment, in the face of not only common sense, but the counsel of (inter alia) Dick Durbin, does not have sense enough to be anything more than Blago's puppet.

    To look at it another way - Burris was out of any office for going on 15 years.  In that time he'd made quixotic runs for Senate, Mayor and who knows what else.  As I said the other day:

    when a person with substantial governmental experience (and who has won elections in the past) over many years cannot garner enough support from responsible adults to make more than a comic appearance in a primary, that's a sure sign that the responsible adults have seen this character up close and decided he lacks the gravitas, intellect, probity and/or character to be a (in this instance) senator.

    There's a reason a 71 y/o man who's a pol, through and through, has been out of office for 15 years.  Time has passed him by, and its obvious to anyone with eyes.

    I am sure that when he opens his mouth for an extended time before the cameras (like he will tomorrow morning), everyone else will see this guy is another Palin, but older.

    Parent

    He has been making money (5.00 / 1) (#32)
    by oculus on Sat Jan 03, 2009 at 01:55:02 PM EST
    off state government contracts during those 15 years.  Plus, probably spending more quality time with the fam.

    Parent
    He has been practicing law (none / 0) (#33)
    by Cream City on Sat Jan 03, 2009 at 01:57:27 PM EST
    for the Chicago branch of a firm based in my city, so I read.  Didn't see anything re state contracts.

    Parent
    Info from an article I linked to (5.00 / 1) (#40)
    by oculus on Sat Jan 03, 2009 at 02:15:20 PM EST
    earlier.  Can't find it now.  One article sd. he is now a lobbyist.  Another says one of his specialties is "governmental relations."

    Parent
    Sorry, scribe.... (5.00 / 1) (#34)
    by oldpro on Sat Jan 03, 2009 at 01:57:47 PM EST
    While I agree with your paragraphs 2, 3 and 4, I cannot agree with your first and last.

    I think the dead giveaway on appointee Burris' attitude came in the remark, if he made it, "We are the senator!"

    That's not the editorial 'we.'  That's the imperial 'we,' as in "We are not amused."

    Strikes me Mr. Burris is having a ball, sticking it to a lot of people who want him to just go away...behave...play ball.  Maybe he has some scores to settle with Dem pols from past losses.  Maybe he's thinking, "There IS a God!"

    No 'maybe' that he's full of himself and loving the limelight.

    A last hurrah...!

    Entertaining as all get out from this seat on the sidelines.

    Parent

    A man and his ego (none / 0) (#44)
    by landjjames on Sat Jan 03, 2009 at 06:06:21 PM EST
    Lynn Sweet was on one of the news programs saying that Mr. Burris is well known in Chicago for referring to himself in the third person.  Other things that point to size of the man's ego are 1) his two children, a son and a daughter, are named Roland and Rolanda, and 2) he has already had a large tomb constructed for his eventual demise.  It's quite  large, headed by "Trailblazer" and lists all his perceived accomplishments with room left to put in his Senatorial record.  You can check out pictures by googling Burris tomb.  

    Parent
    Good gravy, yikes and holy Toledo (none / 0) (#46)
    by oldpro on Sat Jan 03, 2009 at 06:44:46 PM EST
    etc.

    Where there's a will....

    Parent

    One difference (5.00 / 1) (#36)
    by nycstray on Sat Jan 03, 2009 at 02:00:17 PM EST
    Palin can win a primary and election for Gov. . .  ;)

    Parent
    You betcha! (5.00 / 1) (#37)
    by oldpro on Sat Jan 03, 2009 at 02:02:12 PM EST
    By the time Palin's71 (none / 0) (#42)
    by scribe on Sat Jan 03, 2009 at 04:36:32 PM EST
    ain't nobody going to want to listen to her, and that cutesy bad grammar schtick will be long, long over.

    Parent
    Don't count on it. (5.00 / 1) (#43)
    by oldpro on Sat Jan 03, 2009 at 04:43:28 PM EST
    We oldsters have a little different perspective about that.

    Parent
    I Disagree (5.00 / 2) (#45)
    by squeaky on Sat Jan 03, 2009 at 06:21:09 PM EST
    I think that Palin will only gather strength as she ages. Imo, she is a political enemy that should not be underestimated.

    Parent