Drama in the Senate (Blago Appointment)

[Pangloss]

So today the beleaguered governor of Illinois appointed Obama's successor to the US Senate. Immediately thereafter, all heck broke loose. Quite interesting to follow. Here's an article for background:

 

http://www.google.com/hostednews/ap/article/ALeqM5gB85LurXB_6l62s2jbh5OhLWkMGAD95DBMD81

 

Since the governor hasn't been convicted of anything yet, he has the authority to do this, and it sets up an interesting conundrum at the federal level that doesn't appear to be fully addressed by law, mainly because it's never happened quite this way before. The Senate can try say "we won't seat him", but there is a constitutional question of whether they have that authority in this case. The appointee has apparently done nothing wrong, so they can't accuse him of ethical violations. And there are some very good reasons why the Senate isn't allowed to decide who gets to represent each state -- that goes right to the heart of the Constitution.

 

But the Senate does have the authority to validate the election of a new member of the Senate. From the article linked above:

 

Q: What is the Senate's authority to seat or not seat an appointee like Burris?

 

A: The Constitution makes the Senate the ultimate arbiter of a senator's qualification and election when it says, in Article I, Section 5, "Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members ..."

 

That would seem to support their authority over this matter.

 

Senate Democrats were instantly outspoken on this event, saying that while they respected the appointee, they would not allow this to happen. They were supported by a statement from the President-Elect saying the same thing. And it's likely that Senate Republicans would agree, since they have in the past.

 

And I suppose if the appointee is a good appointee, they can always put him up again after the governor is ousted. I'm sure that was a factor in their thinking today.

 

Interesting politics.

[Sisyphus]

It's kind of (well, very) ridiculous that he would be appointed, but I think argument that the Senate can block the appointment is weak at best. The Constitutional language is, per usual, rather ambiguous (what does "the judge" mean?), and if the Senate succeeds in blocking an appointment that is technically perfectly legal, that sets what seems like a bad precedent. What's to stop the majority party from then simply "judging" opposition members "unqualified." Only public opinion. And if that were sufficient to control the government, we wouldn't need a Constitution at all, now would we?

 

That said, there's still nothing stopping the Democratic Party from, say, threatening to "excommunicate" anyone who accepts an appointment from Blago, which could be very effective. Hooray for entrenched two party power structures?

Edited December 31, 2008 by Sisyphus

[Pangloss]

The media is just eating this up. Check out the opening of this AP wire story:

 

WASHINGTON (AP) — Rep. Bobby Rush says he doesn't think any U.S. senator would be caught turning a black man away from serving alongside them.

 

He thought wrong.

 

No Senate Democrats responded to his racial challenge. And they got support from President-elect Barack Obama, who will be the first African-American in the White House.

 

http://www.google.com/hostednews/ap/article/ALeqM5j-CKHJCHa23Nx7aUCc8v-396YEcAD95DMRNG0

[jackson33]

My opinion; Senator Reid, well before the Nomination of Burris, established 'cause', for not accepting ANY nomination by Blago, which was/is not legal. Congress has the authority to reject any elected official based on the election, based on legitimacy, age, citizenship or mental/physical disability, not for reasons they obtained the victory/nomination. Burris, a former State Attorney General, apparently of good character, qualified under any scenario cannot be refused seating, even with a 2/3rds vote in the Senate. He would have and assume planned out the right of appeal to the Supreme Court, which would IMO, over rule any Senate denial of seating....

 

Sticking with opinion, the real issue to me is the influence over the politics by the US Justice System in the first place. Personally I feel Blago is a stain on the US or Illinois political system and will no doubt do hard time for some of his actions (not necessarily) for 'pay for play' in the political systems of either State or Federal. The entire system is built on doing favors for some kind of recognition and to assume winning candidates don't take this into consideration, when making appointments or what ever are their duties is failing to understanding human nature or the purpose for support given in the first place...Hustling a Medical system, for any purpose is quite a different story.

[iNow]

Congress has the authority to reject any elected official based on the election, based on legitimacy, age, citizenship or mental/physical disability, not for reasons they obtained the victory/nomination. Burris, a former State Attorney General, apparently of good character, qualified under any scenario cannot be refused seating, even with a 2/3rds vote in the Senate..

 

Jackson - Will you please cite the exact legal code which spells this out so we can all read it for ourselves (preferably, with a direct URL)? It's not that I don't trust your presentation, it's just that I've learned that sometimes we filter things through our own perception before offering it again to others.

[jackson33]

iNow; Aside from the Constitution itself, I am not aware of any precedent to site, with regards to State Right's to elect and/or nominate their own Senators, Illinois uses the nomination system. The Senate, uses my examples (listed or implied in the Constitution) in rejecting Federal Appointment Nominations, but has no authority IMO, over States rights to who/how/why a replacement is picked, other than the same reasons used to deny any other nomination.

 

I would like to see the 'Law' Mr. Reid used to assert his right over Blago's authority. It does not exist or at best a broadening of Congressional Power. I don't think the US SC would allow this. He (Reid) could then say Ms. Kennedy would not be seated because the now Governor of NY, has admitted to being involved in an illicit affair, personally admitting to this or any future nomination for any number of made up reasons...WON'T HAPPEN, and we will just have to watch it play out.

[iNow]

And, WHERE in the constitution does it say:

Congress has the authority to reject any elected official based on the election, based on legitimacy, age, citizenship or mental/physical disability, not for reasons they obtained the victory/nomination.

[D H]

The legal case for exclusion is Article 1, Section 5, Clause 1 of the US Constitution, "Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members".

 

The legal case against exclusion is Powell V. McCormack, 395 U. S. 486, (ref. http://supreme.justia.com/us/395/486/case.html), in which the Congress tried to expel Adam Clayton Powell, Jr. on the basis of Article 1, Section 5, Clause 1. The Supreme Court said "Bzzzt. Wrong" with an 8-1 margin.

 

 

As things stand currently, I don't think the Senate has a basis for rejecting Burris' appointment. They might have a basis after the fact if Blago is impeached.

[iNow]

Darn it, DH... You took all of the fun out of it. I know what the constitution says, I was just challenging Jacksons explanation!

 

Thanks, though. You're approach was probably the smarter one, less entertaining, but more educational (also, note that Powell was elected, not appointed, so it could get interesting).

[padren]

Seems to me if Burris stays, he will be less than loved in the Senate regardless of his (or lack thereof) qualifications... the only real solution I see is for him to broker an agreement in good faith to serve temporarily until Blagojevich is ousted, and abide (agree to resign when the time comes) by the choice of Blagojevich's successor should it be someone else.

 

All in all I think the basic idea is it's political suicide to fight the Senate and popular opinion and try to dig in.

 

If he uses the position Blagojevich's is giving him to help find a solution that makes everyone happy (regardless of whether he ends up holding the position himself) he has a better chance of being chosen as the best person for the job by the senate itself.

 

If he tries to argue over the semantics and tells the senate to "stick it" because technically Blagojevich has not been ousted yet, he'll be tainted for his whole career. He should throw Blagojevich so far under the bus he ends up buried under the bus station.

[jackson33]

Seems to me if Burris stays, he will be less than loved in the Senate regardless of his (or lack thereof) qualifications... the only real solution I see is for him to broker an agreement in good faith to serve temporarily until Blagojevich is ousted, and abide (agree to resign when the time comes) by the choice of Blagojevich's successor should it be someone else.

 

All in all I think the basic idea is it's political suicide to fight the Senate and popular opinion and try to dig in.

 

If he uses the position Blagojevich's is giving him to help find a solution that makes everyone happy (regardless of whether he ends up holding the position himself) he has a better chance of being chosen as the best person for the job by the senate itself.

 

If he tries to argue over the semantics and tells the senate to "stick it" because technically Blagojevich has not been ousted yet, he'll be tainted for his whole career. He should throw Blagojevich so far under the bus he ends up buried under the bus station.

 

I suspect all 50 Democratic Senators that advised Blogo to resign or allow a State Election, will embrace (in private) Roland Burris, no different for the next bunch on Jan. 6th, 2009. Saying things like it wasn't you, "you know it isn't you" and so on...

 

Burris is 71 yo and will/would be up for re-election in 2010 at 73. Though he most certainly could run, probably winning re-election, knowing he will never achieve seniority (very important) to accomplish much, he would likely concede to one of his competitors (there will be several) and hope that person followed him. Burris has always taken on 'Chicago Politics' but don't think he is up to a real campaign. He lost to Blago himself and Mayor Daily in recent elections. I don't support the notion of Chicago US Representative Bob Rush, Burris or anyone feeling the US Senate should maintain one Black Senator, but it is a valid point after electing the first Black President. IMO...

 

Now the Patrick Fitzgerald has asked for a continuance, to prosecute Blago, think 90 days, my imagination is running wild. First, his even being there is in question as he would be serving at the pleasure of Obama and Presidents tend to fire (most resign first) any to all Federal Prosecutors. I have had serious problems with motivations of Federal Prosecutors in the past, including Spitzer or Giuliano and have always questioned the J. Edgar Hoover operation of the FBI. If Obama was to fire Fitzgerald, for any reason, Obama sets up the perfect scenario for the RNC, or if he doesn't takes on the possibility several members of his Administration will be drawn into the issue, possible indirectly Obama himself...

[iNow]

They interviewed Burris on NPRs All Things Considered today, and I must say, he struck me as a bit of a jerk. After listening to him speak, I'm not at all inclined to support him in this. He actually rather makes me want someone else to be their senator.

 

You can listen too from here (just click "Listen Now"):

http://www.npr.org/templates/story/story.php?storyId=98917405

[Pangloss]

The legal case for exclusion is Article 1, Section 5, Clause 1 of the US Constitution, "Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members".

 

The legal case against exclusion is Powell V. McCormack, 395 U. S. 486, (ref. http://supreme.justia.com/us/395/486/case.html), in which the Congress tried to expel Adam Clayton Powell, Jr. on the basis of Article 1, Section 5, Clause 1. The Supreme Court said "Bzzzt. Wrong" with an 8-1 margin.

 

 

As things stand currently, I don't think the Senate has a basis for rejecting Burris' appointment. They might have a basis after the fact if Blago is impeached.

 

I'm not sure that that's a correct interpretation of Powell v McCormack, having read over the Wikipedia entry. It seems to support the possibility exclusion on a number of different fronts, and explicitly supports that clause in the Constitution.

 

http://en.wikipedia.org/wiki/Powell_v._McCormack

[D H]

I'm not sure that that's a correct interpretation of Powell v McCormack, having read over the Wikipedia entry. It seems to support the possibility exclusion on a number of different fronts, and explicitly supports that clause in the Constitution.

From the Wiki article, "The Court's interpretation was that the clause meant that expulsion was the only method for a House to determine the qualification(s) of its members." In other words, Reid will have to gather 2/3 of the Senate to vote to impeach Burris. Can he do that?

[doG]

The legal case for exclusion is Article 1, Section 5, Clause 1 of the US Constitution, "Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members".

 

The legal case against exclusion is Powell V. McCormack, 395 U. S. 486, (ref. http://supreme.justia.com/us/395/486/case.html), in which the Congress tried to expel Adam Clayton Powell, Jr. on the basis of Article 1, Section 5, Clause 1. The Supreme Court said "Bzzzt. Wrong" with an 8-1 margin.

 

 

As things stand currently, I don't think the Senate has a basis for rejecting Burris' appointment. They might have a basis after the fact if Blago is impeached.

 

I don't particularly think Article 1 Section 5 is a legal case for exclusion. Burris is/was not technically elected but appointed legally by writ of election as specified in the 17th Amendment. I think the Senate would have to actually show the appointment to be in violation of the 17th Amendment to declare the appointment illegitimate. There are no election returns to judge either and Burris meets the qualifications specified in Article 1 Section 3:

 

No person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen.

 

As it stands now I don't think anyone can show that any laws were broken in Burris' appointment and I don't think it's the intent of Article 1 Section 5 that the Senate can just reject anyone they don't like. I would think it would require the Senate to actually show in its judgment that some impropriety occurred in the election of a Senator.

[Pangloss]

From the Wiki article, "The Court's interpretation was that the clause meant that expulsion was the only method for a House to determine the qualification(s) of its members." In other words, Reid will have to gather 2/3 of the Senate to vote to impeach Burris. Can he do that?

 

If you mean does he have the political support, the answer appears to be "yes", since Democrats are a wall at the moment and Republicans agree (though if it drags on a while they unanimity could change).

 

But I don't think there's going to be such a vote. I think the Democratic leadership, with support from Republicans, will just refuse to allow him to enter the building (etc), and Burress will keep suing in various courts, some courts will listen but the Supreme Court will ignore the case, and it will go nowhere until the Blago issue is resolved and then Burress becomes the nominee from a more acceptable source (since not doing so would be a snub of a black politician).

 

So an unqualified and little-known appointee gets the job because of politics. Shocking, I know.

[D H]

As it stands now I don't think anyone can show that any laws were broken in Burris' appointment and I don't think it's the intent of Article 1 Section 5 that the Senate can just reject anyone they don't like. I would think it would require the Senate to actually show in its judgment that some impropriety occurred in the election of a Senator.

Read up on Reed Smoot. He faced an expulsion hearing for being someone they didn't like. The Senate did come to his senses and voted not to expel him.

[Pangloss]

Interesting op/ed piece that basically says that Blago's 6th Amendment rights are being violated if his appointment to the Senate is not allowed. The point being that he's innocent until proven guilty, therefore he should maintain all of his existing powers until that happens.

 

http://www.opednews.com/articles/Is-Rod-Blagojevich-s-sixth-by-Mary-MacElveen-090101-36.html

[ParanoiA]

Read up on Reed Smoot. He faced an expulsion hearing for being someone they didn't like. The Senate did come to his senses and voted not to expel him.

 

Well, that's not as straight forward as "they didn't like" though. At least, not with the Wiki information.

 

There were claims that temple-attending Latter-day Saints took an "oath of vengeance" against America for past grievances. As a leader of the LDS Church, Senator Smoot was accused of taking this oath, which Smoot denied.

 

An "oath of vengeance" doesn't appear to be much other than praying that god will exact vengeance - not exactly terrorism or subversive spy intentions, but one could make the case he was potentially operating in the capacity of an enemy of our state, and perhaps that was the pretense for his expulsion.

 

That said, I'm still not sure they can't do just that - expell someone simply because they can. All they really have to do is make up an excuse, and then proceed, right?

[npts2020]

Well, that's not as straight forward as "they didn't like" though. At least, not with the Wiki information.

 

 

 

An "oath of vengeance" doesn't appear to be much other than praying that god will exact vengeance - not exactly terrorism or subversive spy intentions, but one could make the case he was potentially operating in the capacity of an enemy of our state, and perhaps that was the pretense for his expulsion.

 

That said, I'm still not sure they can't do just that - expell someone simply because they can. All they really have to do is make up an excuse, and then proceed, right?

 

Pretty much. What's good for one branch of gov must be good for the others, right? Isn't that how we got things like Guantanamo Bay, Abu Graib, warrantless wiretapping and data mining, by making it up as we go?

[Mr Skeptic]

On the bright side, we will end up with a better understanding of what our Constitution says.

[ecoli]

Here's an interesting perspective to this problem as applicable to game theory: http://consultingbyrpm.com/blog/2009/01/blago-pick-barack-obama-should-study.html

 

Obama foolishly declared that anyone named by Blagojevich should not fill the vacancy.

 

Do you see the problem? Obama et al.'s declarations just gave Blagojevich the power to prevent one person from getting the job. I don't know anything about Illinois politics' date=' but we can easily imagine someone behind the scenes bribing Blagojevich to nominate a political enemy, and thus tarnish that person.[/quote']

 

By picking Roland Burris, Blago automatically called Burris's legitimacy into question, because of Obama's declaration. Could this have been done on purpose by a political enemy?

[Phi for All]

By picking Roland Burris, Blago automatically called Burris's legitimacy into question, because of Obama's declaration. Could this have been done on purpose by a political enemy?

I don't see this as an interesting perspective at all. Burris isn't being prevented from being named, he's being prevented from being named by Blagojevich. I thought that was pretty clear. And after all the scrutiny, it seems like Burris would *have* to be squeaky clean *because* Blagojevich named him.

 

And I think anyone who calls Obama foolish is just being a partisan hack. Obama may be many things, and he's got an awful lot to prove to me, but foolish he is not.

Edited January 6, 2009 by Phi for All

[iNow]

So... there are all of these claims that the reason Burris is not going to be accepted by the Senate is because he's black (such as those made by Congressman Bobby Rush). Is anyone buying that? Does this claim have any merit? It strikes me as completely unfounded and a stupid distraction from the true issue of a governor who cannot be trusted making the appointment.

[Sisyphus]

Here's an interesting perspective to this problem as applicable to game theory: http://consultingbyrpm.com/blog/2009/01/blago-pick-barack-obama-should-study.html

 

 

 

By picking Roland Burris, Blago automatically called Burris's legitimacy into question, because of Obama's declaration. Could this have been done on purpose by a political enemy?

 

But he's not preventing anyone from being appointed, since there's nothing stopping the next governor from picking the same person. It conceivably be a way of focusing scrutiny on the pick, but if there's nothing shady that that scrutiny uncovers (and so far with Burris, there isn't), then nothing has been accomplished.

 

And, of course, the appointee doesn't have to accept. We don't even know that Burris is the first person Blago asked.