Senate Showdown Looms.  Pushing and Shoving to Ensue?

Harry Reid is drawing a line in the sand with his sword and it’s going to be there on Tuesday.  “Cross not, pretender Burris” he proclaims “or I’ll, I’ll, . . . call the Doorkeeper  and he’ll call the COPS and they’ll call the Sergeant-at-Arms!  Proceed at your own peril, Sir!” 

Yes, Harry and other senior members of the Senate have their ducks lined up, in a row and ready to go.  But, but, can they really do that?  I know they’ve issued statements saying they’ll seat former IL Attorney General Roland Burris (who, in case you’ve been locked in a closet over the last few days, was appointed by IL Gov. Rod “Helmet Hair” Blagojevich to fill Barack Obama’s vacated Senate seat) over all their collective dead bodies, but, rhetoric aside, can they legally refuse to do that?

Scott Lemieux has his doubts.

I feel compelled to point out that missed in many discussions about the Burris appointment is the fact that the Senate is probably unable to prevent him from being seated as a matter of constitutional law. The Supreme Court ruled 8-1 (and 8-0 among justices deciding on the merits) in Powell v. McCormack that “in judging the qualifications of its members, Congress is limited to the standing qualifications prescribed in the Constitution.” It is possible to distinguish the cases—the fact that Burris is appointed obviously mitigates the problems with Congress interfering with the integrity of elections that Douglas discusses in his concurrence. Still, the bottom line of Warren’s majority opinion is unequivocal and directly on point; if Burris were to litigate an exclusion a lower court would almost certainly rule in his favor, and I doubt that the Supreme Court would overrule.

He concludes that, absent any evidence that the appointment process itself was illegal (i.e. that Burris actually engaged in a “pay to play” scheme) and considering that Burris himself is qualified under the Constitution to be a senator (age, citizenship, residency) then, while the Senate could block him from joining the Democratic Caucus, there is no legal ground to refuse to seat him.

However Lyle Denniston at SCOTUSBLOG doesn’t think it’s that clear.

A house of Congress’s authority to judge an election (and, perhaps, an appointment) would appear to take precedence over any state method of selection, under the Supremacy Clause and the specific grant of authority under Article I, Section 5.

Thus, the Senate may well be in a position to look behind a Blagojevich appointment and apply a federal Senate standard of propriety regarding the appointing authority (the governor) — so long as it did not add a new “qualification” as such for the individual chosen.

“Taint,” in that sense, may well be a federal question, and a “political question,” at that, and that could put the issue beyond the scope of judicial review — again, so long as the Senate were careful to make clear that the “taint” attached to the process, not to the appointee.

Denniston may be correct in this analysis but, at least to this point, nothing has come to light indicating that the selection of Burris was “tainted”.  Granted, Blagojevich is under investigation for attempting to illegally “sell” the seat but the name of Burris never came up during this investigation (that has been revealed).  Blagojevich, in the absence of any attempt to impeach or recall him by the legislature or citizens of Illinois, is still the sitting governor and acted completely within his authority to appoint Burris.  Denniston points out that Illinois law which reads:

When a vacancy shall occur in the office of United States Senator from this state, the Governor shall make temporary appointment to fill such vacancy until the next election of representatives in Congress, at which time such vacancy shall be filled by election, and the senator so elected shall take office as soon thereafter as he shall receive his certificate of election.

is completely straightforward in this respect.

Burris has now filed an emergency request with the Illinois Supreme Court requesting that Illinois Secretary of State Jesse White be ordered to certify the appointment.  (White has previously said he would not do so due to controversies over the process).  However it is unlikely that this will be decided before next Tuesday’s swearing in process.

So we’re back to the question of just what new political theatrics are in store for us on Tuesday?  Certainly Harry Reid and cohorts are to be commended for their principled and ethical stance on refusing to seat a Senator with even the slightest question of ethical credibility.  After all didn’t they practically boo Ted Stevens off the floor when he lost his re-election bid?  Oh.  Wait.

And, even if they were to relent on allowing Burris to be seated, surely, surely their love of integrity, of honor would prevent them from allowing him to sit with the Democratic Caucus or hold any important committee positions, right?  What?  We were pwnd again?

So this is what it comes to.  Here we are again.  Listening to hypocritical rhetoric and chest thumping roars.  The Pretender Burris shall not be seated!  He shall not be one of us!  I just have one question.  Is there an adult in the house? (or Senate?)  Common sense and rational behavior badly needed here.  There is nothing to indicate that there was anything fraudulent or unethical in Burris’  appointment.  He’s a Democrat of long standing and was previously elected to statewide office in Illinois.  If seated, he will have to run for re-election in 2010.  I can’t see any huge obstacles either ethically, legally or rationally to just seat the guy, let him in the Caucus, avoid any big political and media circus and JUST START DEALING WITH SOME OF THE MASSIVE, VERY REAL, PROBLEMS ACTUALLY FACING THIS COUNTRY RIGHT NOW, JUGHEADS!!!!

To further express my protest this bug eyed mouse will continue to flee the picture until my will is done.

Posted by marindenver on 01/02/09 at 06:45 PM • Permalink

On the bright side, I found this:
http://www.giveemhellharry.com/biography

Of course he doesn’t give ‘em hell, he gives ‘em heck and it feels like a hot stone massage. What a baby picture, though—Harry in a wooden tub, but most unSenatorially without chippies.

It’ll be fascinating to see how this shakes out. Now, I don’t know doodly-squat about Burris—never heard of the guy before Blago appointed him. Aside from advocating the execution of a death row inmate who was later exonerated, Burris seems to have been an able if undistinguished pol.

However, I can definitely see why the Dems are taking this to the mat: They don’t want the Blago taint all over the new administration and congress. There’s no reason to believe Obama or anyone else in congress had anything to do with Blago’s gangster maneuvers, but if the Dems welcome Blago’s pick with open arms, that’ll give the GOP a ton of ammunition with which to smear everyone else.

Personally, I’m disgusted with the way the race card is being played (see Bobby Rush’s—who supported a white dude against Obama—hypocritical, racially-charged rant) and Burris’ mealy-mouthed acquiesce to same.

I think at best Burris is allowing himself to be used as a tool in Blago and Rush’s political game. Why? Because he craves power. Well, all politicians crave power, so that’s no surprise. But his putting himself in the service of these cynical creeps doesn’t give me a warm, fuzzy feeling about Burris.

I hope the Dems find a way to kick this issue down the road long enough to impeach Blago and appoint someone else. I’d like to see them start off by making it clear that they won’t be as corrupt and cynical as the GOP.

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