Since this is controversial for some reason...

[Kurt_and_Hunter]

Since this is controversial for some reason, let's keep it simple.

Can anyone state a formal case for NOT swearing in Burris? What is the specific argument?

____________________

To anyone wondering why I am so fired up about this, it has nothing to do with Burris or Blago in my mind. It has to do with the dependability that is the entire basis of our form of government.

If Robert Gates had died a year ago, who would have nominated his replacement? That's not a Talmudic philosophical head-scratcher. It's like, "What is 7 +2?" There is a right answer contained in the formal laws and rules that are the basis of our government. That fact that Bush is a grade-A scum-wad doesn't change the question.

Obama resigned from the Senate. There was a vacancy. The only person in America empowered to fill the vacancy did so. His power to fill the vacancy came directly from the people of the state of Illinois. They held an election to determine who, among other things, they wanted to have the sole power to fill a vacant senate seat and they VOTED to give that power to some ridiculous crook.

The fact that the people of Illinois wouldn't vote that way today is irrelevant... we have a system of representative democracy with set terms of office, not rolling referendums. (Unless there is law that says otherwise, like the California gubernatorial recall provision.)

The statement, "We will not seat anyone Blago picks" was a statement that Illinois only gets one senator because Blago was the only man on planet Earth legally empowered to make the pick. And it is an understatement to say that exceeds the senate's authority.

[LisaM]

1. Not I.

He seems to be a perfectly qualified candidate, and one whom Obama has supported previously.

Isn't it really more about who's appointed, than who did the appointing?

[Ian David]

2. If he were a Republican, he'd be greated with a standing ovation. n/t

[GodlessBiker]

3. Obama does not want him seated. Why are you fighting Obama on this?

Did you support Hillary in the primaries?

Why is this so important to you?

Are you a one-issue person?

There are more important things on the agenda now then to argue about this.

Just be patient, your issue will come up sooner or later.

[LisaM]

4. It's not Obama's decision

Like it or not, that is the case. The President doesn't get to pick and choose the Senate.

[GodlessBiker]

5. Obama has obviously thought this through and sees wisdom in not seating Burris.

He has gotten very far on his judgment, why challenge him now? He may be reaching out to others.

[Kurt_and_Hunter]

6. I can't tell if your reply is satirical

I have tried to not think of this as an Obama thing because I prefer giving him the benefit of the doubt and this is a major error across the board.

I am not fighting Obama. I am fighting FOR the proposition that the United States Senate cannot deny a State representation on a whim.

That's a fundamental concept and one well worth fighting for.

As to whether there are more important things, it isn't me that has made this a story. I am saying it should not be a story.

I think the Senate should swear in a duly appointed senator and get about the very important business of the country.

[LisaM]

10. My reply? No, it's not.

However, you may have been referring to the previous post where the person accused you of fighting Obama.

[Kurt_and_Hunter]

16. Sorry, I meant reply as in "reply to the OP"

[polmaven]

8. What does who the poster

supported in the primaries have to do with ANYTHING?????

[GodlessBiker]

24. Exactly. I hope I never again hear that criticism of someone who criticizes Obama.

[karynnj]

19. It's because there are so many more important things on the agenda

that this is so unwanted. Additionally, it is a poor thing to spend major time and energy on at the start of Obama's administration. The question is whether sending the issue to the Senate Rules committee for 90 days will mean that this issue will be a major news item for three months.

[S_E_Fudd]

7. Political Corruption...

As opposed to legal responsibility is the job of our political institutions to cure...

Given that Blago is on record as trying to sell this Senate seat there is no candidate that he could nominate who would not be legitimately subject to skepticism as to why and how they were appointed. Until the source of that corruption is either gone or an alternate method of appointment is arrived at (special election), no Senator should be seated...that is the only sure way to make sure this corruption does not make its way into the Senate...

[cali]

9. Nope. But fuck that slimebucket Blagojevitch for naming anyone

and fuck Burris for accepting a seat from someone under that kind of cloud of corruption.

Goodbye to a dem senate seat.

[monmouth]

11. The selection of this man by one that is tainted, also taints the selected...n/t

[cali]

12. hmm. who knows more? YOU or Lawrence Tribe?

http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=132x8051405

[Kurt_and_Hunter]

15. Me. I know the 2nd Amendment isn't a personal right.

Surely you recognize the base stupidity of invocation of authority is disputed constitutional matters.

Who knows more about constitutional law, Cali or Antonin Scalia? Obviously Scalia, but that doesn't make him God nor does it nullify your views.

[terisan]

13. You are correct. The current governor was elected by the people of Illinois. He is

exercising his legal authority in appointing a senator to fill a vacant seat.

The reaction of the US Senate leadership, state representatives, and the president-elect seems to me an extraordinary interference with a democratic process.

[PBS Poll-435]

14. Talk about hitting the nail on the head.

The Constitution of the State of Illinois grants the exclusive power of filling a vacancy in the US Senate to the Governor.

The Governor has not been impeached, convicted, or even indicted. Fitzgerald's request for another month before the case against Blagojevich goes before a grand jury is indicative of weakness in his evidence.

The only controversy I could see in this matter is if Roland Burris was "Candidate #5." He wasn't.

Harry Reid's actions with regard to this appointment border on the bizarre.

[S_E_Fudd]

18. No it doesn't...

In fact under Article 1 section 5 of the Constitution it is the U.S> Senate that is the final arbiter....

HArry Reid is doing precisely the right thing

[Kurt_and_Hunter]

20. Article 1 section 5 of the Constitution has been adjudicated. There is a formal interpretation.

That formal interpretation doesn't agree with you reading.

Seriously, do you believe that the Democrats could simply refuse to seat every Republican?

What you are citing could be read to mean that. That's why we have a couple of centuries of interpretive precedent.

The Supreme Court feels that power granted by the Constitution is only the most restrictive possible meaning of the words and is a very, very slight power.

[S_E_Fudd]

22. That is by no means settled...

The previous case had to do with the qualifications of the individual...not the process by which they got there...

That has not been adjudicated...

No Democrats could not refuse to seat Republicans unless the election was adjudged invalid by the Senate would require Republicans to agree)

There is precedent for not seating a member based on their selection by a corrupt process...

http://www.forbes.com/opinions/2009/01/02/blagojevich-burris-constitution-oped-cx_lt_0102tribe.html

[PBS Poll-435]

21. Harry Reid is reaching.

And this is not an election, it is an appointment.

"...qualifications of its own members..." means specifically the Constitutional qualifications.

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.

[S_E_Fudd]

23. There is precedent for denying the seat as the result of a corrupt process...

The Senate is the judge of the validity of elections...including appointments...

The clause was written before Senators were elected popularly...previously they were appointed by state legislatures...

So a strict interpretation of that word is not warranted

http://www.forbes.com/opinions/2009/01/02/blagojevich-burris-constitution-oped-cx_lt_0102tribe.html

[Kurt_and_Hunter]

25. Sorry, but Tribe seems to be flirting with senility. His precedents are senseless.

The cases he cites all concern the conduct of the person seeking to be seated.

If someone has the goods on Burris, go for it.

But since there is no precedent dealing with a blameless incoming senator being excluded and beaucoup precedent that the Senate's power is extremely limited that Tribe piece is ridiculous.

But he's had a bad decade all around.

[S_E_Fudd]

26. But were not based on his constitutional qualifications...

As he points out...

But on the corrupt process used...whether they were by the individual themselves or the person making the appointment seems to me to make no difference...It goes to the validity of the appointment...

[Kurt_and_Hunter]

27. No, it goes to the character of the incoming senator

All three cases cited involved personal misconduct within the political process.

The expansion of that to say they were comments on the entire political scene is more than a stretch.

The process by which Burris was picked was that he was picked. There are no allegations he bought the seat for money or quid pro quo.

And the senate's power is to deal with HIM... with who they are seating or not seating.

The fact/allegation that had Blago picked someone else it might have been part of a pay-for-play deal has nothing to do with the qualifications of Burris other than a generalized suspicion by association.

On that basis one could have excluded every senator ever elected from Rhode Island, Illinois, New Jersey or any of a number of places where almost all political activities have some degree of associative taint.

If the man being judged is clean...

[S_E_Fudd]

29. On your last points...

You seem to be arguing the merits of denying him the seat...not the legal right to do so...


And your argument that the Senate only can deal with his personal qualifications or his personal involvment in a corrupt process does not seem to me what a reading of the clause implies

Article I Section 5 says...

"Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Business; but a smaller number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide."

This first sentence clearly deals with the election or return itself independent of the person chosen...


It will hinge on the meaning of the word "Election" or "Return"

Certainly it will have to be interpreted differently than its common meaning as this was written before Senators were directly elected...

It is very possible that you are correct and he will have to be seated...but it is not a slam dunk, and this precise event has not been adjudicated...

If he is seated the Dems should deny him membership in the caucus and any committee assignments until Blago resigns...

And from a political perspective it is very important the Dems in the Senate be seen as doing everything they can to fight against this type of corruption...

[Kurt_and_Hunter]

31. The text absent the interpretation is moot

I say the power is very limited.

Tribe says yes, but it has at times extended beyond the scope of the Adam Clayton Powell decision. He cites three precedents all of which...

1) precede the Powell decision by decades... which makes a difference in discussing precedent, and

2) involve specific misconduct by the incoming senator himself, not a blameless senator indirectly implicated by suspicion about process

To argue that precedents dealing with individual misconduct in the political process that are succeeded by a precedent so limiting as to be almost dismissive add up to a guide for dealing with a blameless and otherwise qualified incoming senator is a real stretch.

There's no reason to think any of the three cases cited would even survive the Powell decision, and it is more than debatable whether they are comparable to the current business.

The real meaning of Tribe's piece is in the first few paragraphs: He says that on its face it appears his former student Obama is doing something bad, then he goes full-pretzel in trying to put the best face on it. It's more op-ed than serious argument.

[tritsofme]

30. I doubt however, due to the present nature of court system

that they will interfere in a debate regarding internal Senate procedures.

It will be found that this is a political question best left to the Senate and Burris will not be seated.

That is if it even goes that far, IL Democrats have promised the Hill that Blago won't be governor by Valentine's Day.

[Kurt_and_Hunter]

32. Whether Blago is governor on Valentines Day is utterly irrelevant... that's the weirdest part

Blago's subsequent impeachment has no bearing on the matter.

The question is whether he was governor when he made the appointment, which he was.

It will be the opinion of the Illinois Supreme Court very shortly that the seat is not vacant, no matter what the Senate claims. So if a new governor tries to appoint a new senator to a seat that is not vacant he should follow Blago into impeachment or psychiatric disability.

[tritsofme]

36. The seat is technically vacant until Burris takes the oath of office.

The state doesn't get to set the terms of Senate membership.

More than likely, Blago or a future governor could rescind the appointment of Burris until the point he is sworn in, and decide on another.

Either way, there would be two competing candidates for the Senate to mull, and they could choose which one is valid.

And after Blago is gone, there will be no party with standing that will care to interfere with the appointment of the new senator.

[jobycom]

17. I'm not concerned either way, but an argument I'd make AGAINST him being seated might be:

Several qualified candidates obviously refused to pay Blagojevich's fee, and no doubt the governor told them "You'll never be senator unless you play ball with me," or some such thing, because that's how these deals work--it would make no sense to offer the seat for sale and then give it to someone who refused to pay.

Since Blagojevich chose Burris (and I have no doubt Burris is clean and offered or paid no bribe), he is still following through on any threats he made to others. He is still able to punish those who refused to pay him, so he is still carrying out his crime. That means that the public cannot be certain that Burris is the choice that an honest system would have resulted in.

And it should be pointed out that his crime (won't get into whether he's guilty or not for this point) is one of the few mentioned specifically in the Constitution, and generally bars public service.

Now, if you want an argument FOR seating him, it's simple. Blagojevich is the legal governor, Illinois law allows the governor to appoint who he wants in this situation (assuming the appointment is qualified), and no one has removed Blagojevich from power, even though they have the authority to do so. The Rule of Law does not always favor situational concepts of right and wrong, but that's no reason to abandon it. Of course, the Constitution does give the Senate the power to refuse to seat him, but doing so deprives Illinois of their legally chosen Senator, so it should only be done in extreme cases where the candidate's qualifications or character are clearly defective. Such has not been said about Burris.

How's that? I'm not in Illinois, so it's not my vote. If it were, I'd choose sides, but so far I haven't.

[On the Road]

34. That is the First Sensible Argument I've Heard

over why Burris SHOULDN'T be seated.

The arguments repeated here have all tended to be pragmatic or political: Whether Obama supports Burris, whether the Illinois state senate will block the appointment, whether the Senate will seat Burris, or (like the Tribe article) whether the Senate has the authority to do so.

None of these address the question over whether there is a good basis for blocking Burris. Blagojevitch was obviously corrupt in the way he searched for candidates, but no one seems to have any good reason to think that his choice of Burris was corrupt. In fact, it was probably an attempt to cleanly appoint someone above reproach in order to retain gubernatorial power and legitimacy.

Now it is true that Burris was the final result of a corrupt search process. You could interpret that as meaning that the choice is tainted. Personally I'm not sure whether that's enough of a reason to overturn the choice, but it is certainly pertinent.

[Phx_Dem]

28. I tend to agree. Burris seems a little flakey and a bad

choice, but judging by everything I've heard and read, his appointment is legal.

I can understand the Dems anger at Blago's actions, particularly after he agreed not to make an appointment, but the law is the law and it seems disrespectful to the rule of law and to the Senate as a whole, when they try to do a run-around the law when things don't go their way.

The Dems look as bad (actually worse) than the Republicans who are refusing to seat Franken until possibly months of legal disputes are reconciled.

I don't think Harry Reid has ever had a good idea or made a good decision since he's been majority leader -- or maybe ever. I still think he'll back down becuase it will just too appalling to see a legally-appointed black man barred from taking his seat in an all-white Senate. Not to mention that asshole obstructionist McConnell and his co-horts are threatening to block Obama's first act of his Presidency -- the stimulus bill -- we need every vote we can get.

Edited to add:

I just red Laurence Tribe's opinion on this. As a very well-respected constitutional lawyer, if he says it's completely legal to bar Burris, then it probably is. I wonder if there's anything illegal about the Repukes refusing to seat Franken?

[amandabeech]

37. It may be legal, but it may not be a very good idea.

Getting this out of the media glare and getting on with the business of the country might be a better idea.

Reserving the Senate's ability to refuse to seat, if such right exists, only for extreme cases, which this doesn't look like to me, might be a better idea, too.

Lawyers sometimes get in the habit of equating "legal" with "good idea." Unfortunately, Obama has shown signs of thinking that way in the past, and I think that it is something he should try to avoid.

[Milo_Bloom]

33. He has a right to pick and the senate has a right to deny...

based on a corrupt process.

If Il ends up with only one senator, it is the fault of the man who refuses to step down for his crimes.

Please save the "innocent until proven guilty" bs for people who don't understand it is a legal fiction.

[BlooInBloo]

35. You have to keep in mind: Americans have no idea what a "formal case" actually IS.

[IsItJustMe]

38. Quit. Don't disturb the herd with facts.