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The Problems With The Pro-Blago/Burris Argument

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 . .

Problem Number 2, misstating the HOLDING in Powell:

The Supreme Court's conclusion could not be clearer or more on point: "In short, both the intention of the framers, to the extent that it can be determined, and an examination of basic principles of our democratic system persuade us that the Constitution does not vest in the Congress a discretionary power to deny membership by a majority vote."

To take this excerpt from Powell and turn it into the erroneous notion that the Supreme Court has established a firm rule that controls the Burris situation is problematic to say the least. It is wrong in my view. Powell does not militate that Burris can not be excluded based on Article 1, Section 5. In his concurrence, Justice Douglas stated the the rule of the Powell case was the following:

While I join the opinion of the Court, I add a few words. As the Court says, the important constitutional question is whether the Congress has the power to deviate from or alter the qualifications for membership as a Representative contained in Art. I, 2, cl. 2, of the Constitution. Up to now, the understanding has been quite clear to the effect that such authority does not exist. . . . Contests may arise over whether an elected official meets the "qualifications" of the Constitution, in which event the House is the sole judge. But the House is not the sole judge when "qualifications" are added which are not specified in the Constitution.

(Emphasis supplied.) Clearly Powell concerned the adding of qualifications by a House of Congress beyond those enumerated in the Constitution, not the judging of "elections and returns. The concern of Powell was not about the process by which a representative was chosen, but about the exclusion of a properly chosen representative who was deemed "unqualified" by the House for reasons not enumerated in the Constitution. Justice Douglas, again in concurrence in Powell:

A man is not seated because he is a Socialist or a Communist.

Another is not seated because, in his district, members of a minority are systematically excluded from voting.

Another is not seated because he has spoken out in opposition to the war in Vietnam.

The possible list is long. Some cases will have the racist overtones of the present one. Others may reflect religious or ideological clashes.

At the root of all these cases, however, is the basic integrity of the electoral process. Today we proclaim the constitutional principle of "one man, one vote." When that principle is followed and the electors choose a person who is repulsive to the Establishment in Congress, by what constitutional authority can that group of electors be disenfranchised?

(Emphasis supplied.) Roland Burris was elected by no one. Indeed, the basic integrity of the process of Burris' appointment is in serious doubt - in my view, irredeemably tainted.

The man Roland Burris has not been excluded. The appointee of a Governor credibly accused of trying to sell the seat for which he made the appointment is the person excluded. Would Professor Chemerinsky be so worried if instead of discussing a corrupt appointment process, we were discussing a fraudulent election? What would be the Constitutional principle behind that distinction?

Personally I doubt this episode will be a precedent for much of anything. But let's suppose for a moment it is a precedent for all posterity. Is it, as Chemerinsky thinks:

creat[ing] a dangerous precedent. It could open the door to the Senate or the House overturning the will of the people and excluding representatives under one or another pretext. If Burris -- whose appointment meets the legal test, no matter what you think of Blagojevich -- is not seated, other properly elected (or appointed) representatives also are at risk.

Or is it creating a narrow precedent that blocks an appointment by a Governor credibly accused of having tried to sell the very appointment he is trying to make? I think it is the latter.

I would also ask this question - would seating Burris create a dangerous precedent whereby the Senate must accept all "lawful appointees" - even those garnered by corrupt means? As a Constitutional question, what is the difference in the Constitutional power exercised by the Senate in either case?

It is not unconstitutional or wrong to have a different judgment than Erwin Chemerinsky regarding when the Senate should use its power pursuant to Article 1, Section 5. Disagreeing regarding the wisdom of its use is not the same thing as saying such use is unconstitutional. Chemerinsky, like many pro-Burris commenters, conflate the two. Chemerinsky, like other pro-Burris commenters, is wrong too.

Speaking for me only

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    Question (5.00 / 4) (#3)
    by jbindc on Tue Jan 06, 2009 at 02:26:33 PM EST
    What do you make of the part of the argument left out here?

    [i]"Those who wish to block Blagojevich's appointment are also mustering a second constitutional argument, citing Congress' stated power to decide "elections" and "returns" of its members. The claim is that Burris was not properly selected and thus the Senate can exclude him.

    The problem here is that Burris unquestionably was lawfully selected. According to the 17th Amendment, "When vacancies happen in the representation of any state in the Senate, the executive authority of such state shall issue writs of election to fill such vacancies." Illinois law gives this power to the state governor, and that is Blagojevich until he is impeached and found guilty.

    Allowing the Senate to exclude Burris on any except the narrowest of grounds would create a dangerous precedent. It could open the door to the Senate or the House overturning the will of the people and excluding representatives under one or another pretext. If Burris -- whose appointment meets the legal test, no matter what you think of Blagojevich -- is not seated, other properly elected (or appointed) representatives also are at risk.

    The Supreme Court's conclusion could not be clearer or more on point: "In short, both the intention of the framers, to the extent that it can be determined, and an examination of basic principles of our democratic system persuade us that the Constitution does not vest in the Congress a discretionary power to deny membership by a majority vote."[/i]

    Especially in light of the fact that it was the Illinois Democrats (with, some reports, at the request of Reid) who failed to vote to hold a special election (which Blago called for at the time also).

    Just wondering what your thoughts are....

    This (5.00 / 3) (#7)
    by Abdul Abulbul Amir on Tue Jan 06, 2009 at 02:31:32 PM EST
    Especially in light of the fact that it was the Illinois Democrats (with, some reports, at the request of Reid) who failed to vote to hold a special election (which Blago called for at the time also).

    This does have the look of Reid using whatever means necessary to get an appointment to his liking.

    Parent

    When an election return (none / 0) (#6)
    by Big Tent Democrat on Tue Jan 06, 2009 at 02:28:33 PM EST
    is corruptly garnered, is a person any less "lawfully elected?" If so, why?

    Parent
    I don't know (5.00 / 4) (#14)
    by jbindc on Tue Jan 06, 2009 at 02:38:00 PM EST
    I think you make a good argument, but then Erwin C. is a noted constitutional scholar, and I think his argument is sound as well.

    Blago is accused of selling the seat. He is not guilty (as of now) of selling the seat.  The governor is the only one with the authority to appoint a new Senator, since the legislature failed to change that. The business of who represents the states belongs to the states, and I don't like the precedence this sets for future appointments - The Senate doesn't like what a governor has been accused of (again, not convicted of), so they refuse to seat the governor's choices.


    Parent

    The difference is now we are arguing (none / 0) (#18)
    by Big Tent Democrat on Tue Jan 06, 2009 at 02:39:58 PM EST
    about what the Senate SHOULD do, not what the Senate CAN do.

    I object to Chemerinsky turning his view of what the Senate should do in to what is "constitutional."

     

    Parent

    Shouldn't there be some requirement (5.00 / 0) (#52)
    by Radix on Tue Jan 06, 2009 at 04:33:20 PM EST
    to show that the Burris appointment, itself, was tainted?

    Parent
    There's no such test in the Constitution (none / 0) (#55)
    by andgarden on Tue Jan 06, 2009 at 04:36:02 PM EST
    And there are good reasons why there should be no such test, period. I'll bet you can think of a few.

    Parent
    I'm not so certain. (none / 0) (#60)
    by Radix on Tue Jan 06, 2009 at 04:48:29 PM EST
    Isn't the Senate's position that because Blago tried to sell the seat originally, the whole process in now irrevocably tainted? Therefore, no matter who is appointed, as long as Blago is involved, the process is suspect? My question was, can the Senate make this claim, or do they need demonstrate this taint in an case by case basis?

    Parent
    As I read the constitution, yes, (none / 0) (#62)
    by andgarden on Tue Jan 06, 2009 at 04:50:49 PM EST
    they can make this claim. And they get to set the standard.

    Parent
    You read (none / 0) (#101)
    by Pepe on Tue Jan 06, 2009 at 07:57:29 PM EST
    it wrong. Try reading the link that BTD provided for the precedent provided.

    Parent
    On original intent (none / 0) (#54)
    by lobary on Tue Jan 06, 2009 at 04:35:00 PM EST
    Seems to me that the purpose behind Art I Sec 5 is to protect the democratic integrity of each house of Congress, and the holding in Powell is consistent with this. The Court sought to affirm the notion that the will of the people couldn't be trumped easily. I believe that the Senate's refusal to seat any Blagojevich appointee is actually consistent with Powell and the purpose behind Article I Sec 5 because the Senate is denying membership to a member whose presence would compromise the ideals the framers and the Court sought to protect.

    Parent
    another way of stating this (5.00 / 1) (#11)
    by ryanwc on Tue Jan 06, 2009 at 02:35:18 PM EST
    What do you do if a governor is
      convicted
    of trying to sell the seat to Candidate A, but appoints Candidate B, (perhaps she's the sister of an appellate court judge), the very morning just before the jury returns the verdict?

    If you follow the arguments being advanced for Burris, the Senate would still have no authority.   There is no process of appointment.  There are only individuals who are appointed and not appointed, through completely distinct lines of thinking, and since no one could yet prove that the appellate judge's sister was appointed with an ulterior motive, the appointment would have to go through ... innocent till proven guilty.

    True, but (5.00 / 1) (#22)
    by jbindc on Tue Jan 06, 2009 at 02:45:53 PM EST
    then it's a matter of PR (which this all this circus is anyways).

    If a governor was charged and tried and was awaiting a jury verdict, evidence would have been presented and witnesses sworn before testifying.

    In this case, Blago hasn't even been indicted.

    The image of a governor about to hear his fate tomorrow making an appointment is vastly different from one who is the subject of an investigation.

    Parent

    Blago will be impeached tomorrow (none / 0) (#23)
    by Big Tent Democrat on Tue Jan 06, 2009 at 02:46:56 PM EST
    Which is a political process, not a legal one (5.00 / 1) (#25)
    by jbindc on Tue Jan 06, 2009 at 02:51:28 PM EST
    As opposed to what? (none / 0) (#29)
    by Big Tent Democrat on Tue Jan 06, 2009 at 02:58:50 PM EST
    seating an appointed Senator? That's a legal process?

    Parent
    So if I file a private criminal complaint (none / 0) (#37)
    by gtesta on Tue Jan 06, 2009 at 03:36:57 PM EST
    against Obama because he held an illegal lottery when he held a contest for tickets to Denver in exchange for campaign contributions, do I make all appointments that Obama makes "tainted" until such time as he is able to clear his name?

    Barring Burris just isn't going to work.

    They can oppose him in the primary in 2010 if they want him gone.

    Parent

    that's a ridiculous comparison (none / 0) (#38)
    by txpublicdefender on Tue Jan 06, 2009 at 03:42:23 PM EST
    That "analogy" is nonsense.

    Blagojevich has been charged by complaint from a sitting United States Attorney with a sterling reputation for integrity and prosecuting public corruption cases against officials from both parties with attempting to sell the appointment to this very Senate seat.  Also, the Constitution gives you no authority to pass on the President's appointments unlike here, where the Constitution very clearly gives the Senate at least some authority to judge the propriety of the elections/returns of those who present themselves to be Senators.  

    Parent

    Not Seeing It (5.00 / 0) (#41)
    by gtesta on Tue Jan 06, 2009 at 03:59:18 PM EST
    If I can use the criminal justice system for mischief, it is not out of the realm of possibiliy that the U.S. Attorney might too.

    After all, Bush fired the attorneys who wouldn't play a little political ball and Fitzgerald wasn't fired, so...

    I'm just suggesting that a "cloud of suspicion" over a gov. who hasn't been indicted or convicted isn't enough justification to strip legal appointment powers from said gov.

    If we get into a discussion of degrees of credibiltiy of "tainted processes", it is a dangerous precedent that I don't want to go to.

    Parent

    more than a cloud (none / 0) (#79)
    by txpublicdefender on Tue Jan 06, 2009 at 05:35:01 PM EST
    You keep ignoring the facts of this case, though, that make it more than just a "cloud of suspicion."  You have a judicial finding of probable cause to arrest based on a sworn affidavit attesting to recorded conversations where the Governor was seeking to gain a monetary benefit in exchange for appointing someone to the seat.  The investigation is being run by a United States Attorney who is almost universally acknowledged as having the highest of integrity.  The Senate can rely on these specific facts to determine under their Article I, Section 5 powers that this appointment is not valid.

    Your example of filing a personal criminal complaint against Obama related to something that had nothing to do with any of his appointments therefore somehow allowing you, who has no constitutional authority to do anything about it, to bar his appointments.  That's just a ridiculous comparison.

    Parent

    Actually Yes (none / 0) (#100)
    by Pepe on Tue Jan 06, 2009 at 07:51:20 PM EST
    Seating a appointed Senator or Representative is a legal process as there are both Constitutional laws and State laws governing such matters. In addition political elections and appointments have been argued in the SCOTUS which confirms it is a legal process. Did you even read the link you provided? Because precedent in matters like Burris are cited.

    Parent
    Hmm (none / 0) (#13)
    by ryanwc on Tue Jan 06, 2009 at 02:36:07 PM EST
    I guess the UL tag isn't for underlining.  oh well.  Now my post looks like some sort of alternative poem on the appointment power!

    Parent
    Nice Unordered List n/t (none / 0) (#94)
    by LarryInNYC on Tue Jan 06, 2009 at 07:22:12 PM EST
    Correct (none / 0) (#16)
    by Big Tent Democrat on Tue Jan 06, 2009 at 02:38:38 PM EST
    Illinois secretary of state's deadline (5.00 / 2) (#17)
    by Cream City on Tue Jan 06, 2009 at 02:39:41 PM EST
    is tomorrow to respond to Burris' suit, so the saga will continue then -- the day that Reid is meeting with Burris, making it another story watched from Washington to the new DNC hq in Chicago -- and perhaps that Illinois response will bring an end to this . . . since Reid, et al., focused today on that signature.  Or maybe they'll have to shape-shift again and find another argument.  The more they do so, the less wise they look, sadly.

    The suit is interesting to read, btw.  I don't think the suit itself, filed almost a week ago now, has been discussed here, but I fortunately found it elsewhere, and complete with a photocopy of the document unsigned by the Illinois secretary of state.

    Interesting to read, too, that he and Burris are longtime friends.  What a tangled web it is that political life weaves -- not that I think that any pols actually have friends by my definition.

    I think Burris has an open and shut case (5.00 / 3) (#21)
    by Big Tent Democrat on Tue Jan 06, 2009 at 02:44:34 PM EST
    The Illinois SOS has no discretion not to sign the certification based on his views of what Blago's powers should be or what the Senate should do.

    It is a ministerial act whereby he affirms the Senate indeed signed the certificate. Which is undeniably true.

    This little sideshow was extremely unseemly.

    Parent

    Well, I'm glad we've come around (5.00 / 3) (#31)
    by Cream City on Tue Jan 06, 2009 at 03:00:00 PM EST
    to not calling me down for asking that question, labeling it a tactic by my "race ba[i]ting Obama-botish side."  And I'm glad that it is okay again to ask a legal question on a law blog, as I did not trust other sources I sought out so came here with it.  I find Jesse White's situation and stance on this fascinating -- and in no small part because he also is African American and a friend of Burris.  

    And no, it is not race-baiting to point out that, either; it is attempting to understand the extraordinary context of politics in Chicago, which certainly have had significant influence in politics nationally of late.  With all that is wrong about Chicago politics, it also is intriguing to see that not everyone in it is in lockstep there.  

    So I also had hoped to see, as I cannot find, White's grounds for refusal to sign -- and thus whether he, who may (depending upon his reasons) be showing some principle and/or conscience, could be in danger of himself being impeached or otherwise brought down by this.  And whether that was a Blago tactic, if they've differed before, etc.  

    Parent

    You were never called dow n for asking (1.00 / 0) (#80)
    by Big Tent Democrat on Tue Jan 06, 2009 at 05:35:03 PM EST
    that question.

    You were called down for engsging in race baiting,

    Parent

    That you continue an egregious (5.00 / 1) (#84)
    by Cream City on Tue Jan 06, 2009 at 05:45:38 PM EST
    charge requires explanation of your justification for making it, not just that you keep making it.

    It may work in court, but it doesn't work on me, as I'm used to the litigious types resorting to name-calling when they have nothing else.

    Parent

    To make it easier, here (5.00 / 1) (#90)
    by Cream City on Tue Jan 06, 2009 at 06:17:00 PM EST
    is my comment that you called race baiting and for which you called me (me!) an Obamabot, which I understood was term banned here, btw. . . .

    This comment was in reply to another commenter, not near a tv, asking what was happening with Burris coming to the Capitol:

    Turned away by secretary of Senate (none / 0) (#32)
    by Cream City on Tue Jan 06, 2009 at 09:44:59 AM EST
    but hard for media to catch all going on because of the media mob scene -- "not what Democrats wanted to see on this day that was to be victorious . . . a Democrat appointed to the Senate, by a Democratic governor, then refused admission by a Democratic Senate" and "unprecedented," says CNN reporter.

    Burris attempted to present the certificate of appointment signed by the governor -- but not signed by the state secretary of state.  Btw, I'm surprised that there has not been discussion of whether that state official could be construed as in dereliction of duty -- and that it is the state secretary of state who could be impeached.  Not that he would be, with Democrats in control in Illinois, but the legal question intrigues me.

    Burris is now heading back out of the building to hold a news conference.  Discussion of whether Reid will hold one, too. . . .

    Throughout, no Senator -- notably not the senior Senator from Illinois, Durbin -- did the courtesy of coming to entry area (quite sizeable) to greet Burris.  This all was done by civil servants aka lackeys following orders to keep their jobs.  I wonder what some of them think about having to do so -- and at the same time that Dems are talking about Franken not needing a certificate?



    Parent
    he's in no danger of impeachment (none / 0) (#64)
    by ryanwc on Tue Jan 06, 2009 at 04:55:34 PM EST
    because he's well liked and his stance is popular.  If he were in a district, it's conceivable someone could make mischief in a primary (though not much -- there are too many black voices on his side, people like Sun-Times columnist Mary Mitchell).  But anyway, he's not, and statewide, this is good politics.  

    I'm not the final word, of course, but I have been involved in Democratic politics in Chicago for 20 years.

    Parent

    Fyi, CQ says no certficate needed (5.00 / 1) (#58)
    by Cream City on Tue Jan 06, 2009 at 04:42:11 PM EST
    and thus no signature by sos, gov, etc. -- in addition to the question of whether the sos is not doing his pro forma duty.

    See this quote from Congressional Quarterly.  

    Others may know better how reliable a source it is on legal and/or historical questions.  I think it's good on the latter, but nobody's perfect.

    Parent

    Yes, But (none / 0) (#34)
    by squeaky on Tue Jan 06, 2009 at 03:04:06 PM EST
    Doesn't this move allow Senate Rules Committee 90 days to review, whether or not Burris wins his suit?

    Parent
    I agree (none / 0) (#45)
    by Warren Terrer on Tue Jan 06, 2009 at 04:09:23 PM EST
    except I think you mean he affirms that the Governor (not the Senate) signed the certificate.

    Parent
    Did Reid call White and tell him not to sign (none / 0) (#24)
    by Saul on Tue Jan 06, 2009 at 02:50:42 PM EST
    the certification for Burris?  One of the news station said there was credible evidence that he did that.  Anybody know?  If he did would that be a factor against Reid or not.

    Parent
    That is some of the background (none / 0) (#33)
    by Cream City on Tue Jan 06, 2009 at 03:02:19 PM EST
    on White's stance that I've been trying to find; see above.  He and the backstory, perhaps with Blago, intrigue me, but I've found nothing like this.  And now it's a teevee report, so not a substantive story -- but since teevee usually takes its news from others, I'll watch for an AP story on this.  And on what could happen to White.  Thanks.

    Parent
    Jesse White is thoroughly a man (none / 0) (#68)
    by ryanwc on Tue Jan 06, 2009 at 05:16:06 PM EST
    of the Chicago machine.  He worked his way up in County Board George Dunne's organization, first as state rep, then as county recorder of deeds (the spot that Sen. Carol Braun had held). He runs a very popular "tumbling" group, kids from a notorious housing projet who do aerial gymnastics at street fairs and perform at Bulls games.

    He was the kind of guy who continued to go to "Ward night", the night of each week when people in the organization held office hours for people to come in and talk about garbage pickup, long after he'd progressed beyond the ward.

    While he might have heard from Reid, my guess is his eyes were on Illinois voters, not on national demands.  If anyone talked to him, it would be Durbin, not Reid, since they're friends, having run on the same state ticket and never had any trouble with each other.  

    Keep in mind the difference between the positions of Jesse White and Bobby Rush or Danny Davis.  Jesse not only needs votes from a predominantly white electorate, he ALWAYS has.  Even as state rep, his district was predominantly white.  So his every political instinct is completely different from those of Rush & Davis.

    It's something that got airbrushed out after the 60's, but we've had blacks who represented white districts forever here.  It's not just Obama, not just upper-middle class blacks.  Even Oscar DePriest, who I believe was the first African American to enter Congress since Reconstruction, ran initially in a district without a black majority.  Tickets were racially and ethnically balanced, and that meant you got used to voting for people of color, so your neighbors would vote for the Polish guy.  

    I don't want to get all mushy-eyed or anything.  Obviously there's a lot more to the story, much of it negative, but this has always been one line of development here.  

    Parent

    Thanks. And no, I'd never get (5.00 / 1) (#70)
    by Cream City on Tue Jan 06, 2009 at 05:23:33 PM EST
    mushy-eyed over any Chicago pol; I just couldn't figure out what seemed, with so little reporting on him, what looked it could be a profile in courage.

    Nope, just a profile in Chicago politics, probably all preordained as to which pols needed political cover on this?  And since I now have read that the certificate isn't really needed, much less his signature on it, it's back to the Dems in Congress just being dumb.  Dumb because this was Obama's first full day in D.C., and yet his would-be successor got the greatest amount of coverage . . . and all as a reminder of the political cesspool from which the president-elect came.

    As noted in another comment, maybe he can be a Harry Truman and rise above the machine that made him, if the machine would just get out of the news.

    Parent

    I think (5.00 / 2) (#26)
    by befuddledvoter on Tue Jan 06, 2009 at 02:54:43 PM EST
    if Blago appointed someone of Reid's or Obama's liking we would not be arguing this point today.  The person would have been seated. That clearly sets a very bad precedent.  

    What Chemerinsky or Tribe have to say about the issue is interesting.  I read it and ponder, full well knowing the law is what the Supreme court says it is and nothing more.

     

    Your belief is belied (5.00 / 1) (#28)
    by Big Tent Democrat on Tue Jan 06, 2009 at 02:58:19 PM EST
    by the fact that the Dem Senators sent Blago a letter telling him not to appoint ANYBODY.

    Parent
    Yes, but they may lack the authority to (5.00 / 1) (#93)
    by esmense on Tue Jan 06, 2009 at 06:57:32 PM EST
    MAKE HIM concede to their wishes. There's no question that Senate Democrats' desire to disassociate themselves,the party in general and the Obama administation, from Blago and the "taint" of his conduct is correct, or that doing so is necessary. What is in question is whether making a request that Blago had no compelling reason to accede to, without clear authority to make him do so, was the best way to both disassociate themselves from, and minimize any ongoing impact of, the scandal.

    I think Durbin and Reid made a tactical mistake (in their handling of the situation) -- playing a weak gambit that, because it was weak, was likely to lead to ongoing conflict which inevitably would mean MORE, and ongoing, focus on the scandal. There was absolutely no reason to expect Blago to do what they asked simply because they asked -- to suddenly develop some kind of scruples and decide to act in the best interest of anyone (the party, Obama, etc.) but himself. What they requested, while it was to the benefit of them, the party, Obama, etc., wasn't, of course, of any benefit to Blago.

    Frankly, I think they were led astray by mixed and less than pure motivations. They didn't just want to disassociate themselves from Blago and the "taint" -- they also wanted the appointment made under circumstances that provided them with more influence and control. And that desire blinded them to the weakness in their strategy.

    Parent

    You are right (5.00 / 0) (#97)
    by Pepe on Tue Jan 06, 2009 at 07:36:45 PM EST
    The Senate has no authority to tell a sitting governor what to do or who he can appoint.

    In addition some of Obama's people and many other Dems call Blago to discuss their suggestions early on. They made no demands then because they are in no position to.

    Parent

    BTC was just (none / 0) (#108)
    by ryanwc on Wed Jan 07, 2009 at 08:35:15 AM EST
    in that post replying to the guy who said it was racist not to seat Burris.  That is ridiculous as he said, since they said ahead of time they wouldn't accept anyone sent by Blags.

    Parent
    That is the problem (none / 0) (#99)
    by ruffian on Tue Jan 06, 2009 at 07:44:30 PM EST
    Making demands, demanding apologies, all strategies that tend to backfire in one way or another when you have no power over the person, or are not dealing with people with any sense of decency, ie. Blago or many Republicans.

    On the Sunday shows Durbin and Reid threw around the words 'defied us' an awful lot, like they have the right to tell a state governor what to do. I have come around to the position that Burris should not be seated because there is no way to ensure his appointment by this governor was untainted, but Reid and Durbin's public statements have left a lot to be desired, since the very first one, which laid out the case just fine.

    Parent

    How do you vacate a legal appointment (5.00 / 1) (#48)
    by Saul on Tue Jan 06, 2009 at 04:18:13 PM EST
    to the senate by a sitting legal governor?  If the Senate refuses to seat Burris does this act in itself  create a vacancy? If not and there is no vacancy then Quinn cannot appoint another senator if there is no vacancy. He can only appoint if there is a legal vacancy IMO

    It reaffirms that there is a vacancy (none / 0) (#53)
    by andgarden on Tue Jan 06, 2009 at 04:34:50 PM EST
    They said they wouldn't take an appointment from Blago, and indeed they are not going to.

    Parent
    But (5.00 / 1) (#59)
    by Saul on Tue Jan 06, 2009 at 04:47:50 PM EST
    the legality of the appointment can only come from the legal governor making the legal appointment to fill the legal vacancy.  Just because  the Senate does not like it or requested Blago not to do it itself destroy the legal appointment.  So my question is what according to the law  if you know it which I do not ( and maybe site the law) creates a legal vacancy just because the Senate does not want it.  

    Parent
    Who controls the Senate? (5.00 / 0) (#51)
    by Jolsson on Tue Jan 06, 2009 at 04:31:09 PM EST
    What the Senate is currently trying to do is the following:


    Impose a test on a would-be Senator with respect mere accusations of wrong-doing of the Governor who appointed him.


    From the Burris debacle, one could deduct that the ones who can veto a Senate appointment is: 1. a Secretary of State, 2. a Secretary of the Senate, and 3. the Senate collectively.


    If these oppositions to appointments were allowed, the American political system would become infinitely more gridlocked than it already is.


    Feinstein agrees with the pro Burris argument!! (5.00 / 1) (#67)
    by jedimom on Tue Jan 06, 2009 at 05:12:55 PM EST
    Dianne Feinstein followed the same reasoning I and others did, that Burris is valid, she is calling for him to be seated and she is the incoming Chair of the ROOLZ Cmte Reid keeps throwing about wildly...

    stmt here

    Funny (none / 0) (#74)
    by Big Tent Democrat on Tue Jan 06, 2009 at 05:28:52 PM EST
    She signed a letter in December saying the exact opposite. She is losing her mind.

    Parent
    How about the (5.00 / 1) (#96)
    by Pepe on Tue Jan 06, 2009 at 07:26:02 PM EST
    Letter Of The Law? She may have decided to follow that instead of being another knee jerker.

    Parent
    Did she forget to (none / 0) (#102)
    by Big Tent Democrat on Tue Jan 06, 2009 at 08:19:12 PM EST
    read the "letter of the law" before sending that letter?

    Parent
    Could be - they often don't read the (none / 0) (#107)
    by andrys on Wed Jan 07, 2009 at 02:52:05 AM EST
    bills they sign, alas, as one of them admitted.

    Parent
    Payback For Panetta? (none / 0) (#81)
    by squeaky on Tue Jan 06, 2009 at 05:35:25 PM EST
    She is entirely predictable (none / 0) (#82)
    by andgarden on Tue Jan 06, 2009 at 05:38:28 PM EST
    I would never hesitate to go to bat with the Senate Democrats. They pretty much always cave.

    Parent
    wow (none / 0) (#83)
    by lilburro on Tue Jan 06, 2009 at 05:44:22 PM EST
    "If you don't seat Mr. Burris, it has ramifications for gubernatorial appointments all over America," the California senator said. "Mr. Burris is a senior, experienced politician. He has been attorney general, he has been controller, and he is very well-respected. I am hopeful that this will be settled."

    As head of the Rules Committee, this makes things very difficult.

    Parent

    Tell me, do you usually site a (5.00 / 1) (#104)
    by oculus on Wed Jan 07, 2009 at 01:14:42 AM EST
    one justice concurrence as the holding of the case?

    This is true (none / 0) (#1)
    by Abdul Abulbul Amir on Tue Jan 06, 2009 at 02:23:51 PM EST
    Although Burris is untainted by the scandal, any selection made by Blagojevich is suspect.

    This is true.  Then again, any apointment made by any living breathing pol is suspect to some degree.  Is Paterson expecting a favor of some kind from Kennedy, or Cuomo, or whoever he decides to appoint?  We can suspect up a storm, but thats all just speculation.

    The issue is when should the Senate step in (none / 0) (#5)
    by Big Tent Democrat on Tue Jan 06, 2009 at 02:27:37 PM EST
    I feel comfortable with drawing the line when there is credible evidence that the appointer tried to sell the seat.

    Indeed, I feel UNCOMFORTABLE with not drawing that line.

    Parent

    Ha! Guilty until proven innocent! (1.00 / 1) (#35)
    by Pepe on Tue Jan 06, 2009 at 03:15:38 PM EST
    "Evidence" that has not seen the light of day in a court. "Evidence" that you have not evebn (and never will) personally seen.

    But yet to you he is guilty with no day in court! And you are a lawyer? Not much of one apparently. Lawyers don't say guilty until proven innocent.

    And yet with a guilty verdict on your part without even so much as a court appearance you smugly sit here and bash Chemerinsky and Powell? LOL. Rich. I'm never shocked.

    At this point Blagojevich is a legally sitting Governor. As for Burris, he has done nothing wrong. He is qualified. He should not be punished for unproven suspicions about another man.

    And lastly no one in their right mind would think that Blagojevich, at this point in time, would appoint a 'pay for position' appointee to the senate seat - including Blagojevich himself unless of course laughingly he would want to incriminate himself. LOL. Well no one but BTD anyway!

    The Senate Dems are wrong on this. And as if there is not more important business at hand. But instead in typical fashion they suck the air out of important things to front page a 'B' section page 9 story (or at least one would think they would want to make it a 'B' section page 9 story).

    On top of that they are denying a Black man filling the seat of a Black man and have the Congressional Black Caucus up in arms amoungst others. What a pathetic display of judgment. On top of that Obama is in agreement with them!!!

    Who is Obama's press adviser again? He should be fired.

    Parent

    Article I Section 5 (5.00 / 1) (#44)
    by lobary on Tue Jan 06, 2009 at 04:08:37 PM EST
    Article I Sec 5 says the Senate "shall judge" but does not give instructions how to do so. Burdens of proof and presumptions of innocence are not in the text, so I suspect that as long as the Senate followed some set standard then a court would defer to its judgment.

    The wrongdoing that Blago is accused of directly relates to the Senate seat in question. The perception that he tried to solicit bribes for the President-elect's Senate seat undermines our trust in the democratic integrity of the US Senate. The Senate has the constitutional power to respond accordingly to protect the public trust.

    Parent

    Obviously you didn't (5.00 / 1) (#95)
    by Pepe on Tue Jan 06, 2009 at 07:22:49 PM EST
    bother to read Chemerinsky's opinion in the provided link regarding Powell vs. McCormack. There is precedent in such matters. There is also logic going way back if you read the SCOTUS opinion THAT Chemerinsky provided.

    Parent
    I agree if... (none / 0) (#9)
    by Abdul Abulbul Amir on Tue Jan 06, 2009 at 02:34:14 PM EST

    I agree if there is evidence that he sold the seat to Burris.  However, there is none.

    Parent
    Then we disagree (none / 0) (#19)
    by Big Tent Democrat on Tue Jan 06, 2009 at 02:42:42 PM EST
    IO think the line is drawn once the appointer tries to sell the seat.

    I believe the appointment process by that appointer is irredeemably tainted.

    But we arguing what the Senate should do, not what the Senate CAN do under the Constitution.

    I would argue that your view of what the Senate SHOULD do is reasonable though I disagree with it.

    What I would not argue is that your view of what the Senate SHOULD do is unconstitutional because I disagree with it. Chemerinsky did that and that was wrong of him imo.

    Parent

    if Blago is not impeached (5.00 / 2) (#27)
    by Abdul Abulbul Amir on Tue Jan 06, 2009 at 02:56:56 PM EST

    So if Blago is not impeached and convicted, then Illinois should be without a second Senator?  That position seems extreme.

    Parent
    And yet we've suffered such a situation before (none / 0) (#69)
    by ryanwc on Tue Jan 06, 2009 at 05:22:52 PM EST
    I mean, it's not like having the wildly unpopular and now likely criminal governor, for reasons and motives unknown, appoint a man who lost 3 statewide Democratic primaries after he couldn't sell the seat gives us all a warm feeling of "representation".

    I don't think you're a troll, but in general, complaints about how Illinois is unrepresented strike me as concern trolling.  We don't want this Senator this way.  That much is very clear from polling.

    I'm mostly angry that cynical Democrats prevented a special election.  If they had passed a special election bill and put it on the Governor's desk, I think the case would have been much stronger, even if the Governor didn't sign the bill.

    Parent

    I agree with your final paragraph. (none / 0) (#77)
    by dk on Tue Jan 06, 2009 at 05:32:37 PM EST
    The legislature had the chance to pass a veto proof bill setting a special election and, in fact, Durbin supported such a move in the early days of all this.  But then it fizzled because various members of the Democratic leadership were a) greedy and b) insecure.

    They were greedy, because each kingdom within the leadership (Obama, Reid, etc.) wanted to make sure his or her own candidate got appointed, and hoped to convince Quinn to appoint their choice once Blago was impeached.  And insecure, because they were scared to lose the seat to the Republicans in an election.  It's a sad state of affairs, and the Ill. legislature should have done the right thing.  They didn't, and this is the mess that we're left with.

    My personal opinion, aside from the federal constitutional arguments, is that this should be an Illinois matter.  The Illinois legislature had a way of taking the choice out of Blago's hands (the special election) and they didn't.  Thus, Burris should be seated (assuming there is no proof that Burris is tainted) and people who want to complain can blame the Ill. legislature and those in the Democratic leadership who pressured them to do the wrong thing.

    Parent

    I heard that Blago supported a separate election (none / 0) (#92)
    by Saul on Tue Jan 06, 2009 at 06:31:54 PM EST
    also ( don't know if that is truce but heard that on TV)  but Reid was afraid of losing the seat to a republican and therefore the Il congress voted not to have one.  

    Parent
    That's a use of "militate" (none / 0) (#2)
    by andgarden on Tue Jan 06, 2009 at 02:23:52 PM EST
    that I will file away.

    One question I would ask: for the purposes of satisfying Article I, Section 5, would it not be better just to say that the Blagojevich appointment is, in fact, an election, just with one voter? (It's a second bite at the apple if people don't like "returns.")

    I think it is a return myself (none / 0) (#4)
    by Big Tent Democrat on Tue Jan 06, 2009 at 02:26:40 PM EST
    But election/return - it is the act of choosing a Senator.

    But without the Baker v. Carr ramifications.

    Parent

    Yes (none / 0) (#12)
    by squeaky on Tue Jan 06, 2009 at 02:35:47 PM EST
    I took a double take on that one. Great word usage..

    Parent
    Incorrect conclusions (none / 0) (#8)
    by Bruster55 on Tue Jan 06, 2009 at 02:32:22 PM EST
    After having read your comments. I had to conclude that you are incorrect in your assesment.
    Using your argument. Any US Attorney can charge any politician with any crime and he no longer has the power of his office.

    So the corrupt Attorney Generals office can charge all Democratic Representative and using your argument deny them the right to their office.

    Did you really think this out before you stated your opinion.
    Did you really advocate anarchy?


    You're missing a step (5.00 / 1) (#10)
    by andgarden on Tue Jan 06, 2009 at 02:34:31 PM EST
    If the Senate decides that those charges are credible, and that there is some question about the "returns" they can review the appointment.

    Parent
    To be clear (none / 0) (#15)
    by Big Tent Democrat on Tue Jan 06, 2009 at 02:38:01 PM EST
    That is a pretty general result. Can you name any politicians charged by a US Attorney who retained his power of office?

    Of course the whole scandal behind the politicization of the Department of Justice was precisely because of the great power the Justice Department has.

    For decades the Justice Department had well earned pride of the lack of politicization of its prosecutions. you can disagree with their policies of prosecution while recognizing they had a well earned reputation for integrity.

    Indeed, one of the factors involved here is Patrick Fitzgerald tremendous reputation for integrity. He has prosecuted political corruption of all type coming from all parties. I assume you know he put the former Republican Governor of Illinois in jail.

    But even were that so, it is a judgment of the Senate, not the US Attorney.

    Parent

    Also (none / 0) (#20)
    by squeaky on Tue Jan 06, 2009 at 02:43:11 PM EST
    It is not like there is some kind of longshot here, impeachment is imminent:

    "These tapes are relevant evidence; we'd like to have them," said David Ellis, a lawyer for the impeachment panel. But he said the panel could wrap up its work as early as this week, and "we have already gathered a large volume of evidence."

    link

    Parent

    indeed, talk at the statehouse (none / 0) (#71)
    by ryanwc on Tue Jan 06, 2009 at 05:25:31 PM EST
    says impeachment on Friday (I think posters above confused the date they'd likely hear the tapes with the date predicted for the vote.

    Parent
    BDT Says (none / 0) (#73)
    by squeaky on Tue Jan 06, 2009 at 05:27:50 PM EST
    And BDT may have (none / 0) (#87)
    by ryanwc on Tue Jan 06, 2009 at 05:59:46 PM EST
    better sources than mine.

    Mine are the Daily Southtown:
    http://www.southtownstar.com/news/1360521,010409impeach.article

    as passed along and certified with the stamp of approval of thecapitolfaxblog.com, which is probably the best source for anything related to Illinois state politics.

    But I mean it - BDT could have better sources.  Anything's possible with Illinois politics.

    Parent

    er ... BTD, not BDT. (none / 0) (#88)
    by ryanwc on Tue Jan 06, 2009 at 06:00:30 PM EST
    sorry about that.

    Parent
    christ (none / 0) (#89)
    by ryanwc on Tue Jan 06, 2009 at 06:03:38 PM EST
    the southtown took the Jim Durkin quote mentioning Friday, cited on capitolfaxblog, out of the article and substituted a Rep. Gary Hannig quote predicting Thursday.

    Maybe it will be end up being Wednesday.

    Parent

    Friday Is More Likely (none / 0) (#103)
    by squeaky on Tue Jan 06, 2009 at 10:34:53 PM EST
    Burris will testify on thursday.

    Parent
    Thanks; as you're actually in Illinois (none / 0) (#75)
    by Cream City on Tue Jan 06, 2009 at 05:31:37 PM EST
    I'll trust your tip -- and plan my Friday with time to watch what happens in lovely Springfield.  

    Parent
    Alas, (none / 0) (#30)
    by Alien Abductee on Tue Jan 06, 2009 at 02:59:46 PM EST
    I suspect short-term political calculation will trump both legality and principle once Franken is seated.

    I agree (none / 0) (#32)
    by Steve M on Tue Jan 06, 2009 at 03:01:06 PM EST
    with every word of this post.

    The idea that, if Burris is rejected, suddenly a precedent is set whereby a bare majority of 51 Republicans will start rejecting Democrats for no reason at all - but somehow, they would refrain from that scenario just so long as Burris is seated - is just plain silly.

    Question? (none / 0) (#36)
    by Saul on Tue Jan 06, 2009 at 03:23:41 PM EST
    Is this a quid pro quo (something for something) if true.

    Yesterday on Hardball, Lynn the Chicago reporter, was talking about the wiggle room that Reid would be discussing with Burris on Wednesday  She said that her sources told her that Reid could discussing with Burris the following scenario.

    Reid.  
    We will seat you now if you promises not to run in 2010.

    I question (none / 0) (#43)
    by Warren Terrer on Tue Jan 06, 2009 at 04:06:51 PM EST
    how a promise like that would be enforceable against Burris.

    Parent
    Heh (none / 0) (#47)
    by Steve M on Tue Jan 06, 2009 at 04:17:25 PM EST
    No, that is not a quid pro quo, it is an ordinary exchange of political favors.

    If Reid offered to seat Burris provided Burris bought him a boat, that would be a quid pro quo.

    Parent

    Why are politcal favors excluded? (none / 0) (#50)
    by Saul on Tue Jan 06, 2009 at 04:21:26 PM EST
    Must it be only money or material exchange.

    Parent
    Excluded from what? (none / 0) (#57)
    by Steve M on Tue Jan 06, 2009 at 04:38:46 PM EST
    Is it your contention that there is a statute which criminalizes conduct like "I'll vote for your bill if you vote for mine"?  What's illegal is receiving a private benefit for performing a public duty.

    Parent
    I do not know (none / 0) (#63)
    by Saul on Tue Jan 06, 2009 at 04:52:41 PM EST
    but what do the legal minds say about it. Do you have a link supporting your point I can reference.

    Parent
    you could reference (none / 0) (#72)
    by ryanwc on Tue Jan 06, 2009 at 05:27:10 PM EST
    Fitzgerald's press conference, in which he said he didn't intend to criminalize politics, but there was a bright line between political trading of favors and trading things for personal benefit.

    Parent
    I think Chemerinsky (none / 0) (#39)
    by lilburro on Tue Jan 06, 2009 at 03:45:43 PM EST
    is misstating the anti-Blago/Burris argument when he says this:

    Those who wish to block Blagojevich's appointment are also mustering a second constitutional argument, citing Congress' stated power to decide "elections" and "returns" of its members. The claim is that Burris was not properly selected and thus the Senate can exclude him.

    AFAIK, this isn't the second constitutional argument - this is THE constitutional argument against Blago/Burris.

    What are the pro-Blago/Burris people going to say when Quinn lawfully selects someone for the seat?  How many certificates can the Ill. SoS give out at any one time?  

    If Quinn's selection receives a certificate, then it will be more straightforward.  The Senate will judge the returns.  

    I would like to see more pro-Blago/Burris arguments that use "returns" as their basis.  Our two camps (pro-Blago/Burris / anti-Blago/Burris) do not share the same concept of what "filling a vacancy" entails, and when that process begins and ends.  

    Congressional Quarterly (5.00 / 1) (#49)
    by Cream City on Tue Jan 06, 2009 at 04:20:48 PM EST
    reports that the certificate isn't even necessary . . . necessarily:

    Although the secretary of state typically signs the certification letter -- and a Senate-suggested template for the letter leaves a spot for the signature in addition to that of the governor -- there appears to be no requirement under the federal or state constitution, Illinois law or Senate rules that the secretary of State sign off on the pick.

    Among much that I really don't understand about how Dem leadership is (mis)handling this, hanging it on the need for the certificate really seems the dumbest move yet with little to no reason behind it.

    Parent

    You're misreading that (none / 0) (#85)
    by Warren Terrer on Tue Jan 06, 2009 at 05:47:08 PM EST
    It doesn't say the certificate isn't necessary. It says that the certificate need not be signed by the secretary of state. Not the same thing.

    Obviously there needs to be a certificate of some sort.

    Parent

    Not sure re that certificate (5.00 / 1) (#105)
    by andrys on Wed Jan 07, 2009 at 02:25:12 AM EST
    On Olbermann's show they mentioned that the sig isn't required, and I heard the word "form" used to say even the form was not necessary.  While I may have misheard that,
    what matters is they do HAVE the form, without a signature, and the sig is not necessary.

      This was, to me, a sad spectacle put up by Reid, a piece of nonsense and real ugliness (and I have a few actions of Burris in his past that I'm not happy about but the law is the law) in a time when the world is filled with horrors that have to be attended to as quickly as possible insofar as they can even be fixed, with as many Democrats as we can get, ready to vote.

      Leave it to Reid to put the focus where it should not be.
    Typical.  

    Parent

    if you ever want to find out how dumb you really (none / 0) (#40)
    by Jlvngstn on Tue Jan 06, 2009 at 03:54:36 PM EST
    are, try reading the legal speak here.  I can never understand the legal arguments here but it is fascinating to read through the comments.  thanks for the legalese but maybe you should publish cliff notes for those of us who don't get it.

    Larryinnyc writes so that i can understand and stevem sometimes also, like to see more from larry here............

    Well, I would say it could be ignorance, (none / 0) (#42)
    by ThatOneVoter on Tue Jan 06, 2009 at 04:06:04 PM EST
    but I read that ignorance is no excuse under the law. I'm content to let the lawyers settle this  matter, as long as the result is that Burris is not seated.

    Parent
    yeah but it is fun trying to interpret (none / 0) (#46)
    by Jlvngstn on Tue Jan 06, 2009 at 04:10:24 PM EST
    despite my ignorance!

    Parent
    The plot thickens! (none / 0) (#56)
    by dk on Tue Jan 06, 2009 at 04:36:52 PM EST
    Feinstein says Senate should seat Burris!

    You can't make this stuff up...

    MSNBC: DiFi says seat him tomorrow... (none / 0) (#61)
    by magster on Tue Jan 06, 2009 at 04:49:35 PM EST
    ...and be done with it.

    Well, when Bill Clinton was undergoing (5.00 / 1) (#106)
    by andrys on Wed Jan 07, 2009 at 02:50:15 AM EST
    the start of the impeachment process and actually in hearings about his sins, he was still President and still appointed people and signed all kinds of papers.

      Blago made this appointment before he was even indicted and before impeachment proceedings began.  He's Governor, whether they like it or not.  Who cares about how 'tainted' the appointment may be when we see crass doings in Congress daily.  What a bunch of hypocrites.  They're practically all traders.

      If it's that tainted, Burris won't be re-elected, and there is no reason whatsoever to make him agree not to run in 2010 if they (like a bunch of prudish nuns) 'allow' him to sit as appointed by the current Governor who had agreed to special elections but they didn't happen.

    Parent

    I wonder (none / 0) (#65)
    by Cream City on Tue Jan 06, 2009 at 05:01:29 PM EST
    if some of this is leftover hard feelings from the campaign?  As I recall, she was the Friend of Hillary who hosted, at her DC digs, the first meeting with Obama.  That the Dems are not united on the first day of the new session does not bode well, when the country needs them to stop acting like a herd of cats.  

    Parent
    I think you would be happy (none / 0) (#91)
    by nycstray on Tue Jan 06, 2009 at 06:26:49 PM EST
    if they acted like my herd of cats. Although I always thought cats were colonies (at least ferals are).

    And did you know that the phrase we heard often "like trying to herd cats" is incomplete? "It's like trying to herd cats through a waterfall" is actually correct and makes more sense. Herding cats without the waterfall isn't particularly difficult  ;)

    Somebody has to stick up for the cats here. Comparing them to politicians is such an insult to the cats  ;)

    Parent

    Ha! That could explain why (none / 0) (#98)
    by Cream City on Tue Jan 06, 2009 at 07:37:32 PM EST
    my miniherd of two is taking turns, shall we try to say it nicely, bringing up their dinner -- just after I did that comment.  I agree that they're good at ganging up, but my cats cannot be herded; they refuse to take or even recognize direction.

    Maybe I ought to say, from a description by my spouse today of the animals with which he is dealing in India, a . . . herd of monkeys?  We just got off Skype, on which he gave me more details of life with monkeys, camels, elephants; yikes.  

    So my mea culpae to your cats and mine . . . if only so that mine stop making those sounds that make me swear and grab the paper towels again!

    Parent

    My Thoughts Exactly (none / 0) (#66)
    by squeaky on Tue Jan 06, 2009 at 05:09:04 PM EST
    the country needs them to stop acting like a herd of cats.
     

    Certainly not Plantation mentality as it clearly was when Delay had the reigns

    Blago "wins" this small, absurd battle (none / 0) (#76)
    by Exeter on Tue Jan 06, 2009 at 05:31:46 PM EST
    the more we all stew over his choice instead of stewing about him. This is exactly what he wanted to happen. The best move here is to seat Burris and turn the attention back squarely onto Blago.

    He;ll be impeached tomorrow (none / 0) (#78)
    by Big Tent Democrat on Tue Jan 06, 2009 at 05:33:51 PM EST
    I do not know what you think he won.

    Parent
    I am not a lawyer so.... (none / 0) (#86)
    by DXP on Tue Jan 06, 2009 at 05:48:54 PM EST
    I'm not as close to the legal issues as many of you are. From a lay perspective, all this seems like legal 'noodling' to get some sort of result that the legal arguer wants = no special election, an appointment that pleases the arguer and their favored political players. Legal 'noodling' can go so far as to justify most anything. Both major political parties use it. Legal thought is reduced to a tool of partisanship. That is the perception.  Maybe this is the way it is supposed to be but it seems a terrible sacrifice.