You have to give Rod Blagojevich credit. He set out to split progressives with his appointment of Roland Burris, and he’s succeeded. Normally sensible progressives like Digby are wondering whether it isn’t best if we just let Burris serve; Ian Welsh, meanwhile, says that he should be blocked from serving. And people are buying the racial angle hook, line, and sinker, despite the fact that Burris is being opposed for reason laid out before anyone had any idea of the race of a potential Blagojevich appointee. Rod Blagojevich wanted to sow discontent and chaos, and he has succeeded. Heckuva job, Rod.
Now, let’s get one thing clear: the Democrats really have only themselves to blame. Illinois Democrats were ready to pass a law calling for a special election, concurrent with the one for Rahm Emmanuel’s seat. But national Democrats — including, apparently, Harry Reid — decided to hold off, because elections are risky. Never mind that Illinois is a midnight blue state, never mind that the last time the Class 3 seat was up, Illinois Republicans ended up running Alan Keyes, never mind that this seat used to belong to the President-elect, who presumably would stump for his successor; there’s still a chance that the Republicans could steal the seat by receiving more votes than the Democrats, which will never do. And so the Democrats stalled, hoping that Blagojevich would be honorable and hold off on appointing anyone, because, you know, he’s been honorable so far.
So Blagojevich went ahead and appointed Burris, and the Democrats really, at this point, can only stall his appointment; they can’t really reject it, and the idea that Blagojevich will get impeached and then his Lieutenant Governor will appoint someone new is laughable — Burris has already been appointed. If Burris’ appointment is legally valid — and it is — then there’s no way that a new senator gets appointed until and unless Burris withdraws or is booted from the Senate. And the latter, as I noted yesterday, is unlikely.
So the Democrats are crazy to stall the appointment, right? Wrong. Because Burris’ appointment is offensive, and it should be fought until it can’t be fought anymore.
Let’s not mince words. Rod Blagojevich was arrested for trying to sell this appointment. Nobody — not Abraham Lincoln, not Mahatma Gandhi, not Jesus Christ — can be appointed to this seat by Blagojevich without being tainted by that very fact. That Burris doesn’t appear to have given Blagojevich money is beside the point; nobody can be appointed to this seat without being fatally compromised.
Burris, of course, should have done the honorable thing and refused the appointment, but like all politicians, he’s got an ego, and he wants to believe that his wonderfulness can somehow remove the taint of the appointment. It can’t. Indeed, by accepting the appointment of an accused felon, Burris has proven that he does not have the moral or ethical judgment to be a United States Senator. (That others, like Ted Stevens and Larry Craig, also do not is no reason to accept Burris’ shortcomings.)
The Senate will, I believe, ultimately lose a battle to keep from seating Burris. But they can stall. They can work to kill the clock. For example, they can immediately gain 90 days by kicking the appointment over to the Rules Committee for debate. And they can further delay by refusing to seat him, forcing the case into court — and a lawsuit can drag on for years. They should do this, because the simple fact is that no appointee of Rod Blagojevich should be seated easily.
But if the Democrats don’t want Burris to be seated, there’s only one way to accomplish that — push for a speedy special election in Illinois. Yes, that risks the seat flipping, but the truth is that at this point, Democrats are better served by having this seat in the hands of the GOP than held by a man appointed by a thug. If Democrats are serious about keeping Burris out, the surest way is to let Illinois’ citizens pick someone else.
Finally, let’s be clear on one thing: Burris’ being seated or not is not a racial matter. Period. Yes, it’s shameful that our country has produced only five African-American senators. But the solution to that is not to simply accept any African-American who wants the job, just because. There are a number of potential African-American candidates for the Illinois senate seat, who could seek office and win, who would not be the kind of man or woman who would accept the appointment of a crooked politician. Their path to the Senate should not be blocked by an appointee of questionable character, appointed by a man of unquestionably bad character.
He isn’t going to resign. He just isn’t. He wants an impeachment hearing. He wants a trial. “Pay to play” is so ingrained in Illinois politics that the politicians just can’t fathom that it’s actually wrong. They don’t believe that it’s really something that they deserve to go to jail for. George Ryan had that attitude, even after he went to jail. Blago wants to have his hearings, name names, dates and places and amounts and go down with all flags flying and drag as many of the sanctimonious hypocrites that are going to dare to judge him with him. May I live to see it.
Blago doesn’t give a shit what you think. Blago doesn’t give a shit what I think. Blago doesn’t give a shit what the Democrats think. He absolutely doesn’t give a flying f**k what Harry Reid or Barak Obama think. He has, and has had, strong support from the black constituency in Illinois and so he appointed a black politician and thumbed his nose at … just about everybody.
Jesse Jackson Jr., having learned well at the feet of his father, immediately played the race card and dared the Senate not to seat what would be the only black person in the Senate. Others chimed in. Interestingly enough, Jesse White (the current Illinois Secretary of State, a black man, and a LONG time Illinois politician) has apparently refused to accept the letter of appointment from Blago (part of the process as defined in Illinois law). He has absolutely no legal basis to do so, and Blago is suing.
This is SUCH fun. I love it. Blago has exposed Illinois politics for what it is and is busy ripping the scabs off for the entire country to see. And we need it. I have to confess that I hadn’t thought that this kind of thing would be a factor, but maybe the shame of being the laughing stock of the entire country will help clean up Illinois politics. Maybe looking like rustic fools and patsies will get the Illinois electorate to use their brains for once when they go to the polls.
Indeed, by accepting the appointment of an accused felon, Burris has proven that he does not have the moral or ethical judgment to be a United States Senator.
Given that he’s accused and not convicted, and given that at this point there’s a vanishingly low probability that Roland Burris has cut any kind of deal, I really don’t see why Burris shouldn’t accept this appointment. SOMEBODY needs to fill that seat, and Blago just isn’t going to resign, so this is the only way the seat gets filled.
Personally, I favor a combination of proposals. I think that the Governor (in this case, Blago) should appoint someone who will then take the seat. There are going to be a bunch of critical votes coming up quickly in the Senate and I want my State to have it’s due representation. I think that this should be followed by a special election, probably to be held in April (that’s when there will be municipal elections held all over Illinois, including in Chicago), to pick a successor to replace the appointee and serve until the next general election, when the seat would be up anyway.
Never mind that Illinois is a midnight blue state, never mind that the last time the Class 3 seat was up, Illinois Republicans ended up running Alan Keyes, never mind that this seat used to belong to the President-elect,
And before it belonged to Obama it belonged to a Republican. Alan Keyes was an aberration – at the time it was the Republicans’ turn in Fitzgerald’s barrel, as it is the Democrats’ now. That mistake will not be repeated. Illinois could easily elect a Republican to that seat, especially during a special election.
there’s still a chance that the Republicans could steal the seat by receiving more votes than the Democrats,
I wasn’t aware that getting more votes than your opponent = “stealing”.
The Democrats have long been in favor of having special elections to fill Senate seats in this kind of circumstance. Long in favor as long as Illinois was electing Republican Senators as well as Democractic ones. Now that it’s a Democratic seat at risk, well, all that high-sounding talk about wanting to give the voters a voice is shown up as a load of bullshit.
I wasn’t aware that getting more votes than your opponent = “stealing”.
As Foghorn Leghorn would say, “That’s a joke, son.”
The Democrats have long been in favor of having special elections to fill Senate seats in this kind of circumstance. Long in favor as long as Illinois was electing Republican Senators as well as Democractic ones. Now that it’s a Democratic seat at risk, well, all that high-sounding talk about wanting to give the voters a voice is shown up as a load of bullshit.
And while I’m a Democrat, I’m with you there — a Senate appointment might make sense for a short hitch, but the idea that you can be appointed and not face the voters for two years — well, that’s just goofy. Under any circumstances, an appointee should have to face the voters the immediately following November, off year or no. That’s why we call this a democracy.
This seems completely ridiculous to me. If Burris did something wrong, then fine, oppose his nomination, but accepting an appointment for which he is qualified, from a person who has full authority to give it – there’s no problem there. All this drama about “taint” amounts to airy nothing.
If you don’t like the fact that governors have the power to appoint replacement senators (and representatives? I don’t know?), then work to get that law overturned. Until then, those are the rules we are going to play by, and under that ruleset, there may be noxious tons of smoke, but there’s no fire.
There’s no grounds I’ve seen on which to oppose Burris except “it looks bad” which I care for exactly not at all. If you think he’ll be a bad senator, make that case.
P.S. I actually had no idea Burris was black until reading this. Guess that’s what I get for not watching news on TV.
There’s no grounds I’ve seen on which to oppose Burris except “it looks bad” which I care for exactly not at all. If you think he’ll be a bad senator, make that case.
Again, any man who would accept the appointment of an accused felon would ipso facto be a bad senator. It shows a complete lack of respect for the citizens of Illinois and the basic ethical conduct we expect Senators to have. Burris cannot be a credible senator under the circumstances, and that is why he should not serve.
Jeff, the only way that Roland Burris or anyone else could accept an appointment from an Illinois politican that respects the voters would be if half of Springfield, including all of the leadership, resigned en masse. The difference between Blagojevich and the rest of the political leaders in Illinois is that Blago got caught.
My right to have complete representation in the Senate must not be held hostage to questions about Blago’s ethics, as long as the ethics of the appointment to the Senate is not in question. If the Illinois Secretary of State or the Senate itself has legitimate questions about Burris’ appointment, then let them go public with them. But for them to keep me from having equal representation in the Senate because of accusations against Blago otherwise is a violation of my rights.
Interestingly enough Rahm Emmanuel just formally resigned as Representative of the 5th District of Illinois to become Obama’s Chief of Staff. It’s interesting because it was announced that by Illinos law a special election must be held within 120 days to fill his seat. Apparently the law for Representative vacancies is different from that for Senate vacancies. Of course, holding a special election for a single Congressional distict (we have 19 of them) is different from arranging a statewide election. But as I’ve pointed out, the State is having elections statewide for municipal offices in April 2009 already. I should think that the General Assembly could readily add a special election for Senator to that.
But, they won’t. Because as I already mentioned there aren’t enough politicians in Springfield that have basic respect for
their subjectsthe electorate to form a majority to pass this. Partisan politics are FAR more important.Have you read Akhil Amar (Yale con law prof) analyzing the question of whether the U.S. Senate can refuse to seat Burris? Your citation to Powell v. McCormack is very easily distinguishable on the facts: Powell had “a certified and lawful election”; Burris hasn’t.
I thought the issue with Powell was that he had been accused of corruption and was being refused a seat on that basis. Burris has not been accused of any such thing – a pretty good trick for an Illinois politician, as we have seen. And while Burris was not elected, he will have attained his seat in accordance with State and Federal law.
Interesting story in the Chicago Sun-Times. If their report is to be believed, it seems that prior to Gov. Blagojevich’s indictment, Sen. Harry Reid contacted Blago and told him who he should NOT appoint and suggested names of whom he SHOULD appoint.
Those who follow Illinois politics know that Jesse Jackson Jr. (yup, his son) and Danny Davis are currently members of the House of Representatives from Chicago. Emil Jones is the recently-retired long-time President of the Illinois Senate. But what’s most interesting is that those who follow Illinois politics also know that everybody that Harry Reid didn’t want appointed is black and everyone he did want appointed is white.
Now, supposedly the concept was that Harry doesn’t think any of those 3 guys is electable and wants someone appointed that he thinks can keep the seat in 2010. I’d agree that Emil Jones doesn’t have a shot. Otherwise he apparently thinks white women are more electable than black men in the only state that’s sent both a black man and a black woman to the Senate. Of course there are particular individual issues, but I still think he’s out of line here.
RonF,
Yes, but the corruption of which Powell had been accused had nothing to do with the process by which he got the seat. That’s a pretty crucial distinction. The House of Representatives essentially was saying that even though Powell hadn’t been convicted of anything, they didn’t want him sitting with them because he had been accused of misappropriating Congressional funds. The Supreme Court accurately noted that the Constitution doesn’t give the House the power to do that.
What it DOES give both houses the power to do, however, is to determine whether the process by which someone becomes a Congressman or Senator is proper. Powell had won his election by a clear margin and no reported impropriety; his constituents really liked him. Burris, in contrast, is getting appointed by a governor who is generally understood to have been trying to trade the appointment for something of personal benefit, particularly monetary benefit. That casts tremendous doubt on the process by which Burris is getting this seat. The Senate constitutionally could say that it will not accept an appointment made by Gov. Blagojevich so long as his behavior in this regard is under reasonable suspicion.
The Senate constitutionally could say that it will not accept an appointment made by Gov. Blagojevich so long as his behavior in this regard is under reasonable suspicion.
PG, I’ve read through the majority opinion in Powell vs. McCormack. Note the following statements:
To say that the Senate has the legal power to bar Roland Burris from taking his seat is to say that the Senate can bar someone on the assertion of a suspicion that he was not properly appointed, as opposed to proving that he was not properly appointed. Do you really want to go there? For one thing, it seems to violate at least the spirit of “innocent until proven guilty”. It also opens up the blockage of people being seated on the basis of political advantage.
RonF,
1. If you read through the decision, I’m not sure why you’re citing the summary rather than the words of the case itself. Also, for a textualist like yourself, I’m surprised you don’t see the difference between a “member-elect” like Powell, and a appointee like Burris.
2. Criminal law requires standards like “beyond a reasonable doubt” (“innocent until proven guilty” isn’t really a legal standard even in crim law), but civil law has just “preponderance of the evidence.” Are you ready to say that there is a preponderance of evidence that Blagojevich’s decision making process in appointing a senator was wholly legal and proper?
3. As Amar and Chafetz point out,
(BTW, the case that said that a Senate impeachment of a federal judge couldn’t be interfered with by the federal courts is Nixon v. United States.)
4. The Constitution in the 17th Amendment says,
You see that the governor’s appointment power is subject to the legislature’s giving it to him. If the IL legislature doesn’t empower the governor, he cannot properly make the temporary appointment. Without that power, all he can do is call for a special election. (Which seems to me a good idea for him to do ASAP.)
Also, for a textualist like yourself, I’m surprised you don’t see the difference between a “member-elect” like Powell, and a appointee like Burris.
What I see are two people who both attained office in accordance with both Federal and State law. There’s certainly a difference between the two methods they used, but I don’t see that the difference is significant to this issue.
The Senate is also going to hold up seating Franken from Minnesota. The issue there is that the election is disputed and there are going to be legal challenges to the question of whether or not he was properly elected. If there were legal challenges as to whether or not Burris was legally appointed I would have no objection to holding up his seating. But as of this writing there are none
As far as the first citation goes, the key sentence to me is
“For similar reasons, federal courts should not interfere when the Senate plausibly and in good faith decides an election or return to be improper or corrupt.”
There is quite simply no evidence that Burris’ appointment is corrupt or improper. The phone call recordings that have been publicized have referred to other indivduals that were not appointed, and there’s no evidence that there was wrongdoing with regards to Burris. My guess is that Peter Fitzgerald would be able to generate such on short notice (bank records, etc.) if there had been. Those phone calls lead one to suspicion, but if a court decides that this is not a good faith determination that his appointment WAS corrupt then by that standard they can interfere.
But the legislature HAS given it to him, and has not rescinded it, even though they’ve had plenty of opportunity to do so. And now that he’s made it I see no legal way for the legislature to interfere. Illinois state law is such that once the Governor has made his apppointment it need only be certified by the Illinois Secretary of State, who is a Constitutional state officer elected statewide and is not a member of the legislature. There is no provision in the process for legislative review of the Governor’s appointee.
That doesn’t preclude passing a law calling for a special election, with the winner to supercede the preceding appointee. A course of action that I favor, BTW; there are elections all over the State already scheduled for April. But until that election is held the appointee is the Senator from Illinois (subject to being seated by the Senate).
As it happens Jesse White, the Illinois Secretary of State, has refused to certify Blago’s appointment of Burris. He has made no public statement on the matter. Burris is suing, entering a plea directly with the Illinois Supreme Court (Burris was the Illinois Attorney General and knows a little bit about Illinois law) to force White to certify the appointment. I don’t see anything in Illinois law that gives the Illinois Secretary of State authority to deny certification if he’s received proper paperwork from the Governor.
There is quite simply no evidence that Burris’ appointment is corrupt or improper.
I disagree, perhaps because I (like the Constitution with regard to elections) judge it as a process and not just an end result. For example, if there was corruption in the process of an election, the Senate can refuse to seat the member elected even if he would have won without the corruption. Corruption in the process is a problem even if it doesn’t change the end result. Similarly, Blagojevich’s decision-making with regard to a Senate appointment was corrupted by his efforts to benefit himself and his family. That Burris might have been appointed by a non-corrupt governor isn’t the point here; the process has been damaged to the point that any Blagojevich appointment is improper.
My guess is that Peter Fitzgerald would be able to generate such on short notice (bank records, etc.) if there had been.
Has Fitzgerald “generated” bank records in this case at all? My understanding was that he had plenty of damning phone calls recorded, but that he made it all public before Blagojevich actually closed the deal with anyone. It’s more an attempt case than a completed act. You don’t need a dead body to try someone for attempted murder; you don’t need bank records indicating transfer of funds to try someone for attempting to get himself bribed.
you don’t need bank records indicating transfer of funds to try someone for attempting to get himself bribed.
No. But you need them (or some equivalent) to show that someone actually has been bribed.
As far as the rest of this; I view the process of Burris’ appointment as limited to his actual appointment. I don’t view the phone calls where Blago discussed trying to get a quid pro quo for appointing someone else as part of the process of appointing Blago.
I think this is something where reasonable people can disagree. I know one thing; this isn’t going to go away. The next thing I want to see is what the Illinois Supreme Court does with Burris’ petition to force Jesse White (who, BTW, isn’t) to certify that the Governor of Illinois has appointed him to replace Obama. Until that certification is issued the Senate can reasonably hold that Illinois law has not yet been fufilled.
RonF,
Yes, I think our concept of what constitutes the process of Burris’s appointment is the main source of disagreement. But I’m also puzzled by this assertion:
But you need them (or some equivalent) to show that someone actually has been bribed.
Again, to my knowledge Fitzgerald isn’t charging Blagojevich with successfully getting bribed — he’s charging him with corruption, which includes doing his damnedest to get a bribe. Attempt is the broad theory of law that seems to be in play here, while you’re focused on a completed act.
I’m speaking to the difference between trying someone for corruption (where you can bust them for attempting to bribe someone or soliciting a bribe) and trying them for bribery (where something of value has actually changed hands).
Here’s a link to an analysis of the Chafetz and Amar post by Brian Kalt:
The alternative would be to say that once one bad thing happens, the Senate can force the vacancy to persist until there can be a new and clean election. As my colleague Mae Kuykendall points out, though, the new election wouldn’t remove the “irremediable taint” of the corrupt vacancy anymore than a new and clean appointment would.
That makes no sense to me. Where did this “irremediable taint” come from, and why wouldn’t either the new, clean election, or the new, clean appointment, wipe it clean?
Kalt tries to collapse the election and appointment into a single process, but they are distinct. One is a relatively lengthy, complex process that requires the participation of voters; the other is a fairly short, simple process almost wholly at the governor’s discretion. If the election process was corrupt, that doesn’t mean the governor’s appointment process was corrupt, and vice versa.
The Senate has refused to seat Burris, for an entirely legitimate reason; Illinois state law has not been fufilled. Jesse White has refused to certify Blago’s letter of appointment. It’s not up to the Senate to pursue the question of why or how. Burris has filed suit directly with the Illinois Supreme Court to get them to try to force White to sign. We’ll see what happens.
Now, should Burris get that signature and show up with it at the Senate, I’d like to hear Sen. Reid justify why he is denying me, a citizen of Illinois, full representation in the Senate. Burris is old enough, he’s been a resident of Illinois long enough. That leaves the election/appointment process. If Reid thinks that there’s a problem with corruption there, it seems to me that it’s incumbent on him to justify that and immediately hold an investigation into the matter. My representation in the Senate is an important matter; it’s why the Senate exists. Denying me my representation purely on an unsubstantiated suspicion without attempting to resolve the matter one way or another denies me my Constitutional rights.
O.K. Let’s see. A corrupt governor with the heat on him appoints a black man to a high office who is then rejected by the group of people he’s sent to serve among.
Finally – a remake of Blazing Saddles!
It’s awesome, Ron, that you manage to perceive things in such a way that no matter what happens, the Democrats are baaaaaaaad.
Do they seat Burris? They’re collaborating with Blagojevich’s corruption!
Do they not? They’re denying you your civil rights!
In any case, I am fascinated by your newfound interest in making sure we don’t deny people their civil rights. I hope it continues, and that you apply it to other venues than complaining about the Democratic Party.
—Myca
It’s awesome, Ron, that you manage to perceive things in such a way that no matter what happens, the Democrats are baaaaaaaad.
Actually, Jeff is the one that brought up the Democrats. Except in my first posting, when I was responding directly to Jeff’s initial post, I haven’t talked about the Democrats at all. I haven’t made any partisan statements on this at all – what are you talking about?
Except that today Sen. Feinstein says that he SHOULD be seated. And she’s chair of the committee that will rule on Burris’ qualifications. So the plot thickens.
Do they seat Burris? They’re collaborating with Blagojevich’s corruption!
I never said any such thing. At all. Nice of you to criticize me by putting words in my mouth that I didn’t say.
Do they not? They’re denying you your civil rights!
That’s true.
In any case, I am fascinated by your newfound interest in making sure we don’t deny people their civil rights.
My interest in civil rights is not at all new – it has been life long. You don’t seem to know me as well as you think.
I hope it continues, and that you apply it to other venues than complaining about the Democratic Party.
Re-read my previous posts on Illinois politics. I have spent plenty of time criticizing the Republican party (or as I like to call them, the Illinois Reflublican party).
I know that you specifically don’t mind denying civil rights to gay people. I don’t need to know you especially well to know that posing as a champion (or even supporter) of civil rights in that context is disgusting.
This is true.
What you have done, no matter the context, is impute bad motives to nearly every actor surrounding the Blagojevich situation. If Madigan tries to get him removed, it’s not because she believes he ought to go, but because she’s trying to cover something up. You speculate about Obama removing Fitzgerald, despite his actual endorsement of the man. You mutter darkly about how anti-democratic it is for the senator to be appointed, but complain bitterly about it if, after he’s appointed, the Senate refuses to seat him.
I certainly didn’t mean to claim you’ve said something you’ve not said. The senate hasn’t seated Burris, so you haven’t yet had the opportunity to make your entirely predictable objection.
I guess we’ll see whether or not it happens.
—Myca
Myca,
Like most people, RonF is a lifelong supporter of HIS civil rights. He’s a straight male who lives in Illinois, so it’s perfectly logical for him to think that not allowing people of the same-sex to marry in CA (or anywhere else) isn’t a denial of his civil rights, but his not having both Senators for a few months — while also having his former senator as POTUS — is a heinous denial of his civil rights. I fully expect that if RonF ever moves to D.C. that he might well start thinking that perhaps the people who live there ought to have Congressional representation, but in the meantime it’s not clearly in his self-interest for that to be so, thus there’s no reason for him to support those civil rights.
If you view it as very important for the people of a state to have Senate representation, I don’t think it follows that only a bad person (or someone with poor judgment) would accept such a nomination.
The question boils down to this:
If [insert person who has done something horrible] asks you to do [something important] would you do it?
If a [convicted pedophile priest] asked you to [talk on the phone to a teen threatening suicide], would you do it?
The situation need not even be life-threatening to be important. If a [principle who embezzled school money] asked you to [take over an ESL class full of low-income kids], would you be a bad person for accepting the job?
I don’t see how Burris has a moral obligation to either leave the post unfilled or pass the buck to someone else.
Awesomely put, PG. While reading comments in bed, I nearly woke my girlfriend up laughing at yours. Well done, and thanks.
—Myca
PG, your logic holds if you agree with a couple of State courts that think they have the authority to redefine marriage as a bond between two people of any gender who profess love for each other. But if you stick with the rather universal definition of two people of different genders entering into a bond for any of the various different reasons that have been used from antiquity until now (including but not limited to love) then no one’s civil rights have been violated. The concept that marriage is gender-independent is a concept that has received little to no support since the institution of marriage and seems to be a novel invention that I really don’t see any particularly valid justification for.
The concept that same-sex couples have the same rights as disparate-sex couples to have a bond between them receive the civil sanction of marriage is hardly something that is universally recognized as a civil right. I have had no problem with the recognition that homosexuals are due those things that are viewed as civil rights; employment, housing, voting, etc., etc.
Myca:
This is true.
So you put words in my mouth, are forced to admit when I call you on it that I actually said no such thing, and then just blow it off? This is reasonable debate?
What you have done, no matter the context, is impute bad motives to nearly every actor surrounding the Blagojevich situation. If Madigan tries to get him removed, it’s not because she believes he ought to go, but because she’s trying to cover something up.
I noted at the time that I was speculating – I did not state that I knew this for sure or was counting on it. And my support for this was not that she was a Democrat but that a) this was a novel interpretation of the statute she was referencing and that b) she was the daughter of another major player in this farce who, as Majority Leader of the Illinois House and chair of Blago’s re-election campaign who might have questionable dealings of his own exposed. That makes it a lot more reasonable to question as to whether that there’s more to this than meets the eye and at least fairly raises the question of a conflict of interest.
You speculate about Obama removing Fitzgerald, despite his actual endorsement of the man.
He’s been asked about it by all the media (both major papers and all the TV channels) and that those outlets, which span the spectrum of ideological orientations, have repeatedly commented on this even after Obama’s endorsement. It’s a matter of great concern in Illinois, especially after reports that Illinois politicians have tried to influence both Bush and Obama’s people to get rid of him. I still worry – not that he’ll get rid of him entirely but that he’ll promote him out. I’ve seen leftist bloggers ask to have Fitzgerald taken out of Illinois and put in charge of prosecuting Bush for war crimes. I don’t think Obama’s going to do that, but the whole concept of “He’s done a great job at this, let’s have him do something else” worries me greatly.
You mutter darkly about how anti-democratic it is for the senator to be appointed,
I did not. Once again you put words in my mouth. What I actually said was that I’d like to see the office filled by a special election, but failing that (or even prior to that) I’m perfectly content with the Gubernatorial appointment process.
but complain bitterly about it if, after he’s appointed, the Senate refuses to seat him.
Actually, what I said was that the Senate is perfectly entitled to refuse to seat him until the Illinois Secretary of State confirms the appointment and that it’s not the Senate’s business to interfere with that process. There are actually numerous people who disagree with me on this point and think that the Senate has the obligation to seat him without that certification, that the Governor’s letter itself is enough. As of last night that seems to include the Illinois Secretary of State. Jesse White basically said “This is a mess and I’ll be damned if I’ll have my name on it anywhere”, and I must confess I have some sympathy for him; not enough to endorse his inaction, but I certainly understand his feelings on the matter.
I certainly didn’t mean to claim you’ve said something you’ve not said. The senate hasn’t seated Burris, so you haven’t yet had the opportunity to make your entirely predictable objection.
So once again you put words in my mouth, and are actually bold enough to justify it on the basis of “This is what you’re going to say.”
Here’s a concept – how about waiting until someone actually makes a statement or argument until you dispute it?
RonF,
If we’re going to reengage the same-sex marriage debate, you never did explain which part of the text of the Constitution could justify your view that the state can discriminate on the basis of sex in deciding who can marry whom, but cannot discriminate on the basis of race. Would you like to do so now?
rather universal definition of two people of different genders entering into a bond
Universal, if you exclude every polygamous culture — i.e. much of East Asia, the Middle East, etc. In other words, that “universal” definition of Western Christianity (as I’m sure you know, the Old Testament treats polygamy as not merely acceptable but often mandated by Yahweh). Sorry, I don’t think the fact that white Christians have always done X is a good justification for a secular and racially equal state to ban anything except X.
The word on the news today is that Sens. Reid and Durbin (D-IL) are going to meet with Burris today and offer to seat him if the Illinois House impeaches Blagojevich. I have to wonder why there should be a quid pro quo on that basis. Either the appointment is valid or it is not. If it’s not valid on the basis that the apppointment was corrupt, why doesn’t the Senate investigate the matter on it’s own rather than wait for some body it has no influence or role in to do an investigation?
As far as this being a partisan issue, it seems to me that the person who has injected partisanship was Sen. Reid. From the very beginning, even before the actual appointment was made, he’s been grandstanding about what the Senate Democrats would and would not do. Why? Why did he make this a partisan activity? Is corruption a partisan issue? Why has he not sought to have the Senate speak with one voice on the issue? His top concern seems to be burnishing the image of the Senate Democrats in particular, as opposed to leading the Senate.
A polygamous marriage is initiated as a bond between a man and, in a serial fashion, one woman after another. If the bond is severed, it’s an issue of whether or not the male-female bond is broken; one woman in the marriage cannot divorce one of the other women. A polygamous marriage is not a bond between two or more women without a man involved. It’s not analagous. It’s also not limited to either Christianity (in fact, polygamy is not in general a Christian practice) or the West.
RonF,
Where the heck do you get your news? The New York Times says, “They said that Mr. Burris, whose appointment was challenged because of the arrest and federal inquiry surrounding Gov. Rod Blagojevich, has to win the signature of the Illinois secretary of state and persuade a state legislative committee considering Mr. Blagojevich’s impeachment that there was nothing untoward about the appointment.”
This is exactly what I thought was at issue here: whether the appointment process was clean and proper, and whether it complies with state law. Where are you getting your quid pro quo rumors? They don’t have any internal logic — if Blagojevich is impeached, that throws his authority to make appointments into *greater* doubt.
Also, it’s partisan because Reid, a Democrat, is attacking the actions of Blagojevich, a Democrat, who wants to install Burris, a Democrat, into the seat being vacated by Obama, a Democrat? Is there a new meaning of “partisan” that, instead of referring to someone’s acting in the interests of his party and against those of the opposing party, just means that it’s intra-party arguing?
Have you found that missing piece of the Constitution to justify a court’s mandating that interracial marriage be legalized?
“It’s also not limited to either Christianity (in fact, polygamy is not in general a Christian practice) or the West.”
Yeah, I thought what I had pointed out is that polygamy isn’t generally a Western Christian practice, and that to the extent you declare one man-one woman marriage to be the “universal” definition, you’re showing how narrow your concept of the universe is.
Polygamous marriage in practice actually does involve the other spouses. Some cultures, such as traditional Mormonism and certain versions of Islam, give wives veto power over bringing new wives into the marriage. The polygamous family is seen as an interconnected organism, not just a series of unrelated marriages.
Phil,
Your analogies are inapt, to say the least. While being a senator is an important job, it isn’t like taking on tasks (life-saving, teaching) where having more and more people doing them would be more and more useful. Instead, no state can have more than two senators, and a senate seat can be empty for weeks without obvious untoward effects on anyone.
Being a senator isn’t an act of charity and kindliness to those who are in need. It’s a heavily competitive position that Blagojevich thought he could sell. Taking a Senate seat from someone like that is dishonorable.
PG,
How many weeks can a senate seat go empty without obvious untoward effects on anyone? Surely the answer isn’t “indefinitely,” or the framers wouldn’t have decided that each state needs two senators.
By your logic, in order for a person to ethically accept an appointment from a felon, he or she need only believe that, if they refused to take the position, then the seat could be empty for one day longer than it can go unfilled without affecting the populace.
Which is nit-picking, perhaps, but in service of my broader point: the issue of whether it is ethical or not to accept a senate appointment under questionable circumstances may hinge, for each observer, on how important they feel that such senate representation is. Thus, the ethical question of whether the appointment should be accepted takes a back seat to the value proposition of how important or necessary the job is. You seem to assert that the job is not sufficiently important.
RonF,
Actually, what you are describing here is called polygyny. Interestingly, you’ve chosen a non-gender specific term (polygamy) to refute the legitimacy of recognizing non-gender-specific couples.
Phil,
Anyone who believes that having two Senators is that breath-takingly important to Americans’ civil rights had better be in favor of getting Congressional representation for D.C. residents, Puerto Ricans, and all other Americans who currently lack it. At least the House of Representatives has non-voting representation from non-states; the Senate lacks even that.
Why is that logically necessary? The Framers came up with a system of government, but that doesn’t mean that any deviation from that system necessitates untoward effects. If it did, they wouldn’t have allowed for amendments.
The Senate originally was set up to represent states, not individuals, which is why for the first 125 or so years of our history, Senators were selected by state legislatures rather than by direct vote. The 17th Amendment is directed at ensuring that empty Senate seats are rapidly filled by an election, and the appointment is meant to be an at-the-state-legislature’s-discretion stopgap.
er… or they should believe that “Americans’ civil rights” w/r/t senators derive from the constitution, and that the constitution doesn’t provide for D.C. to have representation. Etc.
IOW, my civil rights can be violated even if they are rights which another segment of the population does not possess.
Your argument would only apply if people were saying that the lack of a senator would impair their fundamental human rights, which would not be linked to the constitution. And I don’t think that’s what folks are saying.
I am trying to think of a federal constitutional civil right that doesn’t apply to all adult American citizens. I honestly can’t think of one. The right to vote, for example, is a right of equality, not necessarily toward a substantive end. If there’s a presidential election, all adult American citizens, who have not been disenfranchised pursuant to a felony conviction in which we received due process, have an equal right to vote in it, but the Constitution doesn’t provide any substantive right to the election in the first place. Why do you think there is a substantive civil right for an Illinois resident to have two Senators representing his state in the Senate at any given time? (Does that mean that, with Franken and Coleman still disputing the Senate election, Minnesotans are having their civil rights violated because they currently have only one seated Senator?) Also, what kind of constitutional “civil right” is this for which one cannot have standing to sue for enforcement in the federal courts, but must resign to the political branches as a political question?
I don’t think I’d make the claim that a state citizen’s civil rights are being violated for every second that they live without a senator. Otherwise, any unexpected death in office would lead to a “civil rights violation.” I’m just asserting that it’s important, generally, for a state to have two senators. It might not matter most of the time; it’s rare that a Senate vote is tied or lost by a single vote, and the other Senator can probably argue for the state’s interest during debates.
But would you make the claim that having two Senators is not a preferable condition for citizens of a state than having one? Would you make the claim that the length of time that a state goes without a Senator is immaterial?
I support ensuring that Puerto Rico has the opportunity to become a state if its citizens so choose. My understanding is that, in opinion votes on the subject, the citizens have repeatedly voted not to become a state.
But to be honest, I find the entire concept of the Senate to be an elitist and archaic system of government. It ensures that citizens in populous states have far less representation at the federal level than citizens in nearly-empty states. It perpetuates a system in which all citizens are equal, but some are more equal than others.
Illinoisans are already at a disadvantage. They live in the fifth most populous state in the union, yet have the same representation in the Senate as Wyoming, a state with a population akin to a few Chicago suburbs lumped together.
While it’s true that the Representatives are apportioned according to a state’s population, the House still doesn’t achieve proportionate representation, because no state can have fewer than one Representative. The result is that Californians are woefully under-represented at the Federal level, while people from Wyoming and Vermont are over-represented.
Here’s a link with a breakdown of populations and representation:
http://en.wikipedia.org/wiki/List_of_U.S._states_by_population
From this perspective, the citizens of Illinois have approximately 1/24 the Senate representation of the citizens of Wyoming. During the time that IL has but one Senator, then those citizens have 1/48 the Senate representation of the citizens of Wyoming.
I’m not necessarily saying I find the absence of a Senator, for a limited time, to be “breath-takingly important.” I just think this is interesting.
Phil,
Sorry, I mistook your argument about how having two Senators is in some vague way “important, generally” and missing one of those Senators will have “obvious untoward effects” (perhaps because of their obviousness, you don’t state what those are, either) for RonF’s claim:
It seemed to me an overstated view to believe that the Senate exists for RonF’s representation (rather than to be a more deliberative, albeit less democratic, counterweight to the House), and as I noted, it’s an odd Constitutional civil right that cannot be enforced through the federal courts.
You ask,
There are lots of things that are a “preferable condition” that aren’t important enough for someone to validate another person’s unethical and likely illegal behavior. As a New York resident, I’d prefer to have two Senators theoretically representing my interests, but I’d also like for those two Senators to have been (s)elected in a process free of corruption. Because I’m not interested in ensuring pork for New York, I don’t think having NY go without a Senator is a big deal so long as NY isn’t actively discriminated against in legislation. E.g. if the Senate somehow passed a law that said all waste will now get dumped in NY, I’d be concerned, although as you note it’s rare for one or even two votes to make the difference.
The length of time that a state goes without a Senator isn’t “immaterial,” but again the fact that X makes a material difference doesn’t mean that the material difference justifies validation of another person’s unethical and likely illegal behavior. Due to the current Congressional system of appropriations and log-rolling, missing a Senator may well disadvantage a state in the pork contest. That’s a material difference, but it’s not one that I consider morally worthy of colluding in immoral activity.
Simply asserting that having a Senator is “important,” “preferable,” and “not immaterial” doesn’t suffice; adjective are not enough. There needs to be a substantive argument about what is being lost due to the absence of Senate representation, and whether what is being lost to that is more important than what we lose when we acquiesce to a powerful person’s bad behavior.
Does that mean that, with Franken and Coleman still disputing the Senate election, Minnesotans are having their civil rights violated because they currently have only one seated Senator?
First; I said “Constitutional rights”, not “civil rights”. Someone else made that change and I missed it when I replied (although I did engage in a sidebar about same-sex marriage). Let’s stick with Constitutional rights for now.
Then, to your point: the Minnesota seat is currently open because there is a question as to which one of the candidates was elected. There is an ongoing process to determine which one it is. The expectation is that once that process is resolved, the winner will be quickly seated.
However, in Illinois’ case the Senate has rejected what appears to be a validly appointed candidate despite the fact that there is no specific challenge to the validity of his particular appointment (let’s moot the issue that Jesse White hasn’t signed off for now). Note that no one is investigating it, not even the State of Illinois (an allegation that Burris’ appointment was corrupt is not expected to be one of the impeachment charges).
If the Senate said “We have some questions regarding the validity of Mr. Burris’ appointment” and set forth both the questions and a process to resolve those questions, with the expectation that he would be seated if those questions were resolved, I’d have no dispute. That would make it analagous to what’s going on with the Minnesota seat.
Senators used to represent the State as a sovereign entity; they were the representatives of the State’s government, not the State’s people. That was deliberate; there was supposed to be a balance between the interests of the States individually and the interests of the population. The 17th Amendment changed that. Now they represent the population of the State as a whole and are directly elected by them. The people of a given State have a Constitutional right to be represented by two Senators, and if that representation is arbitrarily withheld then their rights are being violated. Not just mine, but those of every Illiinois citizen including the women, blacks, homosexuals, etc., etc. In my opinion, the current situation is just that; arbitrary.
BTW, Jesse White has announced that he wants nothing to do with the appointment process, but that if the Illinois Supreme Court directs him to certify Blago’s appointment of Burris he will do so.
Also, it’s partisan because Reid, a Democrat, is attacking the actions of Blagojevich, a Democrat, who wants to install Burris, a Democrat, into the seat being vacated by Obama, a Democrat? Is there a new meaning of “partisan” that, instead of referring to someone’s acting in the interests of his party and against those of the opposing party, just means that it’s intra-party arguing?
Because it’s not intra-party arguing. Or, at least, it shouldn’t be. What difference does it make to the Senate what party the Governor of Illinois is, or what party the appointee is? Sen. Reid seems to think that the fact that both are Democrats means that the Democrats should own the process. Why? The man was appointed to the Senate. His qualifications are the business of the entire Senate, not just it’s Democratic caucus, regardless of party. Yet Sen. Reid is treating this as if it’s the concern of the Democratic caucus alone.
The best answer to this from what I can see is that Reid DOES think that this is an issue of operating in the best interests of the Democratic party to the detriment of other interests as a whole. He’s afraid that this will put the stain of corruption on the Democratic party, and he’s elevating that above the interests of Illinois’ Constitutional representation in the Senate.
There needs to be a substantive argument about what is being lost due to the absence of Senate representation, and whether what is being lost to that is more important than what we lose when we acquiesce to a powerful person’s bad behavior.
First there needs to be evidence that the powerful person in fact has behaved badly – or more specifically, corruptly. So far no one has shown that this is the case in the instance of Mr. Burris’ appointment.
Jeff:
He set out to split progressives with his appointment of Roland Burris, and he’s succeeded.
Blago doesn’t give f**kall about splitting progressives. He just wants to demonstrate that he’s still Governor until he isn’t. What he’s doing is saying “I’m Governor and I’m going to keep appointing people, signing bills and doing the rest of my job.” It’s a demonstration that he doesn’t care about the impending impeachment, he’s not going to back off. He doesn’t think he’s done anything wrong and he’s going to keep on doing his job.
His particular selection of a black man aligns with the fact that a) he knows that there’d be an uproar if the only black Senator was replaced with a white person, and b) that’s his most solid support base and has been his whole tenure in office. I doubt splitting progressives means anything to him at all.
The process for having senators is set forth in the constitution. I don’t recall, nor do I really want to recall ;) the exact process for appointment. But it seems fairly obvious as a facial issue that if the right to senators is violated then this is a violation of a constitutional right.
That is entirely different from the issue of D.C. The Framers considered D.C. as a voting bloc and specifically elected to decline to give them representation, arguably for a very good reason. Since that was a specific decision, not based on a discriminatory class, it does not make sense to argue that the general rule of “right to vote” should somehow override that decision and grant a DC citizen the right to get a representative or senator.
Another way to look at it is that denying Illinois the right to representation, or granting DC representation, would both require constitutional amendments to achieve.
In my view, if you have to amend the constitution to get it, then it’s not a constitutional right.
RonF,
Speaking of the Constitution and same-sex marriage sidebars, have you found the missing Constitutional text that says you can’t discriminate on the basis of race, but you can discriminate on the basis of sex?
Constitutional rights are a subset of one’s civil rights and liberties. (That is, there are some civil rights and liberties that are created by statute or other non-Constitutional forms of law, but I can’t think of any Constitutional rights of citizens — as opposed to rights of states or of elected officials in that capacity — that aren’t civil rights and liberties.)
I’m not sure how one can have a Constitutional right that cannot be enforced by bringing suit in the federal courts. It seems to be universally acknowledged that what’s happening with Burris is a political question that will be left to the political branches; you, as a citizen of Illinois, cannot bring suit to demand that your senator be seated. At most, he can demand that his appointment be fulfilled, but that’s Marbury v. Madison stuff — I’m not sure the federal courts will take the case even from him.
One more time, in case you missed my comment above. From the NYTimes:
So I guess you now have no dispute. Where did you see the claim you made in comment 29 that Senate Democrats were offering Burris a quid pro quo deal in which he had to support impeachment of Blagojevich in order to take the Senate seat?
You say in support of your claim that this is “partisan”:
From the same NYTimes article:
So it looks like it’s the Republicans who want to stay out of it, not that the Democrats are keeping them out of it. I suspect the Republicans don’t need the additional burnishing to their reputation on racial matters, after this past election and having their potential RNC chair sending around songs calling Obama a “magic negro,” of blocking an African American from the seat. Rush Limbaugh certainly is enjoying making hay of the Dems’ discomfort in this respect.
This goes back to our disagreement about whether there is an appointment process or if Burris’s selection can be analyzed without regard for what preceded it. I apparently am with Mitch McConnell on this — Blagojevich has behaved corruptly, and by taking an appointment from him, Burris is acquiescing to Blagojevich’s belief that he can do this sort of thing and still be treated as a person who properly can make appointments.
The Constitution doesn’t set it up as a “right to Senators,” particularly not as a “right to Senators possessed by individual residents of the state.” Do you believe there’s also a “right to a vice-president” for all Americans, because the Constitution structurally provides for a VP? If so, how do you think you would enforce this right? The structural aspects of our government — e.g. the process for establishing a Cabinet — don’t all confer individual Constitutional rights on the citizenry.
PG, I was responding to your earlier claim that complaining about the lack of a senator should obligate someone to also complain about the lack of DC representation. Would you care to respond on that basis? I think that your comparison is way off base and I was trying to argue against it, not discuss enforcement mechanisms for a hypothetical vp-less situation.
Sailorman,
I thought I was responding to it. My point with the DC comparison was to note that people clearly don’t consider the “right to a Senator” to be something inhering in, say, their 14th Amendment or other Constitutional rights as a citizen. You say that because having a Senator for a state is in the Constitution, it must be a Constitutional right. I pointed out that having a VP for the whole country also is in the Constitution, yet you seem unwilling to consider that a Constitutional right. Evidently “anything that’s in the Constitution” =/= “Constitutional right.”
I don’t read the NYT. In fact, if the NYT said that the sun would be up at noon tomorrow I’d open the window and look.
The Chicago papers as of yesterday had not reported the deal that you quote. But lets say it’s true – I should hope that the NYT could manage to get a direct quote of a U.S. Senator right.
Mr. Reid said he hoped the Senate would soon be able to consider Mr. Burris’s appointment if Mr. Burris is able to get the Illinois secretary of state to sign his credentials and convince a state legislative panel considering impeaching the governor that he offered nothing in exchange for his selection.
Mr. Reid? I thought the man was a Senator. Anyway – I’ve already noted that I accept the lack of certification from the Ill. SoS as a legitimate reason for holding up seating Mr. Burris – I’m looking past that. The issue of the State legislative panel seems pretty iffy to me, though. That panel is not under the control of the Senate and has no obligation to it. If the Senate has issues with Mr. Burris’ qualifications, the Senate should be looking into it and not sloughing off the responsibility to someone else whose agenda, timing and objective they have no influence over. The Senate’s job is to make a decision in a timely manner, not pass the buck to someone else.
It seems to be universally acknowledged that what’s happening with Burris is a political question that will be left to the political branches;
Which I think is a curious viewpoint and I don’t see that it’s universally acknowledged at all. The question of whether Burris should be seated is not an issue of party or politics. The issue is whether the law has been followed or broken.
you, as a citizen of Illinois, cannot bring suit to demand that your senator be seated.
Says who? What is your basis for this statement? I should think I can demand that he or she either be seated or that a cause be shown why they shouldn’t. I should be able to demand that the Senate do it’s job under the Constitution. Article I, Section 5, paragraph 1 says that each house “shall be the judge” of the qualifications of it’s members. Shall is an imperative – it MUST do it, whether by simply accepting the election or appointment process of the States or by actually “judge”ing that process. I believe that I have the right to demand that it act and perform its duty. Why shouldn’t I be able to seek a writ of mandamus against the Senate?
I’m not a lawyer. I could be wrong about this. But I don’t see that your statement is obvious on it’s face. If I’m wrong, show me.
I suspect the Republicans don’t need the additional burnishing to their reputation on racial matters, after this past election and having their potential RNC chair sending around songs calling Obama a “magic negro,”
Actually, calling Obama a “magic negro” was a slur of the left. David Ehrenstein, a black liberal writer called Obama that in a opinion piece in the L.A. Times. On another thread we’ve spoken of the legitimacy of satire, so why David’s essay in as public a forum as you can get is of no note but that someone subsequently circulating a parody of that privately to a few friends is horrible is beyond me.
Burris is acquiescing to Blagojevich’s belief that he can do this sort of thing and still be treated as a person who properly can make appointments.
There’s no question that Blago (a common usage, BTW) legally made the appointment. And there should equally be no question as to whether he can properly make the appointment – of course he can.
This goes back to our disagreement about whether there is an appointment process or if Burris’s selection can be analyzed without regard for what preceded it.
I wouldn’t say that there should be no regard given to what we heard on the FBI tapes. It’s reasonable to enter an inquiry as to whether he did make the appointment properly. What I say is that the Senate needs to either approve the appointment or make the inquiry. If the Rules Committee wants to hold hearings, fine. But then get going on it – make it a priority and make it happen. Neither seating Burris nor making an inquiry is wrong and deprives Illinois citizens of their representation in the Senate.
Not that there’s a whole heck of a lot of inquiry to make. “Gov. Blagojevich, did you ask for a bribe?” “No.” “Mr. Burris, did you offer a bribe?” “No.” “Was anybody else in the room?” My guess is “No”, but if so then haul them up and ask them questions. Unless any bank records show any transfer of funds or a bug actually recorded a conversation that is at odds with this, I don’t see where there’s much they can uncover that would justify saying “Whoa, this was a corrupt process, we will not seat Mr. Burris.”
Now, if the State of Illinois acts in an expeditious fashion (not it’s usual modus operandi, but miracles do happen) and the Senate wants to take their word for it, that’s O.K. too. But the Senate shouldn’t wait.
“The Chicago papers as of yesterday had not reported the deal that you quote.”
Does the Chicago Tribune not count? or is it as untrustworthy as the NYTimes?
http://www.chicagotribune.com/news/nationworld/chi-010709-burris-senate-jan08,0,2257180.story
Also, you didn’t say where you got your “quid pro quo” claim.
The NYT always refers to people as Mr. or Ms., with the exception of royalty, who tend to be styled either by their first name alone or by reference to their title, presumably to avoid confusing readers who probably don’t think Queen Elizabeth II has a last name.
The state legislative panel will find it much easier to investigate the matter than will the Senate, because the witnesses, evidence, etc. are pretty much all in Illinois. It’s similar to why you hold a trial in the place where the crime or civil breach occurred.
I hate it when people on the internet won’t engage a discussion because they “don’t have time to educate” on why it’s wrong for someone who isn’t a sex worker to discuss issues of privilege among sex workers. However, the issues of standing and political questions were a large chunk of my Constitutional Law class, and an ever bigger part of my Federal Courts class, and I honestly *don’t* have time to explain them right now. I recommend starting with Wikipedia and exploring better sources from there.
http://en.wikipedia.org/wiki/Standing_(law)
http://en.wikipedia.org/wiki/Political_question
Suffice it to say that when I refer to a “political question for the political branches,” I am not referring to whether something is all about politics. For a recent case involving standing and political questions, read up on the guy who tried to bring a case in federal court challenging whether Obama was Constitutionally eligible to be president. Every court said he lacked standing to bring the case. After you review the caselaw on standing and political questions (in which, btw, conservative judges are much more restrictive than liberal ones about who can bring a case), let me know if you think that also was a travesty.
Are you aware that “magic negro” or “magical negro” is a concept in cultural criticism (something in which Ehrenstein specializes, by the way) that long predates his use of the phrase? And that the cultural criticism sense of the phrase is NOT how it was used in the satirical song? I refer you to the Wikipedia entry as it stood before Ehrenstein’s column:
http://en.wikipedia.org/w/index.php?title=Magical_negro&oldid=114752395
And there should equally be no question as to whether he can properly make the appointment – of course he can.
Why of course? Why should someone who appears to have been using a power corruptly be permitted to continue to exercise it? Even if he isn’t blocked legally, we do have mechanisms other than the law to prevent people from doing whatever they want. Although given the mausoleum, I’m not sure that the social force of shaming is something in which Burris puts much stock.
#
You are misstating the comparison in a way that ignores the salient point.
There is no “right to a senator” for people who live in DC, and DC residents are citizens, so the constitutional right obviously doesn’t spring solely from citizenship. There is, however, arguably a “right to a senator representing Illinois” for people who live in Illinois. It is inherent to the combination of their citizenship and their residence in that state. As compared to DC, it is also inherent to their residence in a state for which the Constitution provides a senator to be appointed.
Not what i said, actually. I suppose I might consider a VP a constitutional right, though of an entirely different sort: the damage from a violation of a right resoluting in “no VP” affects the country equally, while the “no senator” damage is more isolated.
As with DC, I think you are failing to acknowledge the obvious distinguishing characteristics of the VP example. For both DC and the VP, it makes them inapposite to the Illinois senator situation.
So let’s go back to the original point. Do you still maintain that “Anyone who believes that having two Senators is that breath-takingly important to Americans’ civil rights had better be in favor of getting Congressional representation for D.C. residents, Puerto Ricans, and all other Americans who currently lack it.”? Or do you concede that there is a distinction between those categories?
Sailorman,
You still haven’t explained how RonF can have a constitutional right to a senator from Illinois, yet be unable to enforce that right through the federal courts. We don’t consider the lack of a senator to be a concrete, individualized injury to an Illinois citizen’s rights, any more than the lack of birthright citizenship in the president is a concrete, individualized injury to any U.S. citizen’s rights. That a native-born president is a requirement of our Constitutional system does not mean that I have a “Constitutional right” to a native-born president. Despite knowing more about law than RonF, you’ve made no more of a legal argument than he has.
Obviously the two categories are not identical, but that doesn’t suffice for your point. For you to be correct, the categories have to be different in a way that impacts civil rights, and as I’ve noted above, you haven’t made any convincing argument that RonF has a civil/ Constitutional right to a senator. Just asserting that he does isn’t enough. You have to demonstrate how the “state resident’s Constitutional right to a senator” has been recognized by, well, anyone.
In a related note: the Illinois House has voted 13 counts of impeachment against Gov. Blagojevich, the very first one being an accusation that he attempted to sell the seat previously held by Mr. Obama. For those of you interested, the text is here, and the report from the select committee that the act incorporates that gives details for each count is here.
Originally they weren’t going to include the Senate seat sale, but they apparently managed to get U.S. Attorney Fitzgerald to give them some of the evidence he had so they were able to add it.
The vote was 114-1. There are 118 members in the Illinois House. They needed 60 votes. The one was Rep. Milton Patterson (D-Chicago), who said he wasn’t comfortable voting against the governor. “I have no firsthand knowledge of any of the evidence,” he said. Rep. Elga Jefferies (D-Chicago)voted “present.” I don’t know what the other two missing votes were yet.
So, now there’ll be a trial in the Senate. There are 59 Senators and it’ll take 40 to convict. These hearings should be very educational. Hopefully Blago will not resign, but will testify and name names, dates, places, times, amounts, etc., etc. He’s just egotistical enough to do it.
PG, you started this by saying the stuff I just quoted above. Since then you have been unwilling to talk about your statement– a comparison using voters for whom the Constitution provides no right to representation at all, and applying those conclusions to the Illinois debacle.
If you want to have a theoretical discussion, fine, but you don’t get to constantly ask me to defend my position, while ducking the questions about yours.
At the moment, you appear to be taking the position that the rights to representation are identical between the groups of [citizens for whom the Constitution provides for representation] and [citizens for whom the Constitution does not provide for representation]. In defense of that position, you’ve said.. not much. mostly you’ve alleged that the rights are unenforceable, though you’ve provided no particular evidence other than the fact that they haven’t been enforced.
So: DO the federal courts have the power to enforce Ron’s rights to a senator? That decision is of course up to the federal courts, and we don’t get a conclusive answer unless and until an appeal has been filed with the Supremes and either heard or rejected. It is certainly the case that even if the courts have such a power, they would defer to some reasonable process as appears to be the case here. But the fact that the courts may not elect to step in during this particular situation is far from conclusive evidence that they cannot do so.
You should know this. And as your argument seems to be based on the logical path of -there can be no remedy through enforcement
-a right without a remedy is not a right
-therefore there is no right
then you should perhaps reread marbury. there is nothing there to conclusively preclude the court from determining that an individual could successfully bring suit for a hypothetical denial of his right to representation.
Moreover, there is good reason to argue that it is ludicrous to grant Ron the power to enforce his right to the franchise, and thus to gain representation in the mob at Capitol Hill, but absolutely no opportunity to protest the removal of his representatives in the mob, in any circumstance.
And as for this: “Despite knowing more about law than RonF, you’ve made no more of a legal argument than he has.”
Eff off, willya? you’re no law professor last I saw, nor the acme of legal argument here. Your own writings are filled with a combination of your own “obviously” and “unconvincing” arguments and I don’t see a damn cite in them. In fact, your legal argument here sucks. So drop the snark.
To address your last paragraph:
OK. So what does that do to YOUR point, which you seem eerily unwilling to discuss? Remember, you don’t occupy the null zone. Only one of us can be right, but we can both be wrong.
Nope. If this were true, then your argument would logically equate to “all cases of first impression should be found against the supplicant.” Whether or not the courts have considered the issue* does not mean that the argument is incorrect; even if the court have considered it it may be in a category which permits reconsideration.
For someone who is complaining that the arguments aren’t legal enough, you are raising some very strange points here.
*Maybe they have. I don’t want to search lexis, and apparently neither do you. but feel free to show me the applicable caselaw and i’ll change my tune.
Sailorman,
I’m not sure how you’ll believe that I am answering your questions — I’m just not giving the answer you want (to wit: “OMG, Sailorman, you’re right and I’m clearly totally wrong here, how could I ever have thought otherwise!”).
For example, you asked, “do you concede that there is a distinction between those categories [of representation for DC residents versus representation for a state’s residents]?” and I said, of course there’s a distinction — our Constitution provides for every state to have two senators, while it does not provide that for DC — it’s just not a distinction that supports your argument that RonF has a Constitutional right to a senator while a DC resident doesn’t. See, question answered!
I am taking the position that neither has a Constitutional right to the representation. I base this on the facts as follows:
1. Not everything in the Constitutional system creates a Constitutional right held by citizens.
2. The process of getting senators is not in the Bill of Rights or any other portion of the Constitution that clearly addresses the rights held by individual citizens (and concurrently the limits on government power).
3. The structural provisions of our federal government — such as the requirement that the president be a native-born citizen — have in the past been held by the federal courts not to be enforceable by citizen suit because citizens lack standing to bring the claims. Marbury v. Madison states, “But where a specific duty is assigned by law, and individual rights depend upon the performance of that duty, it seems equally clear that the individual who considers himself injured has a right to resort to the laws of his country for a remedy.”
Now let’s try using logic.
If X [individual right], then Y [right to resort to law for a remedy to enforce that individual right].
The contrapositive of “if X, then Y” is “if not-Y, then not-X.”
If no right to resort to law for a remedy to enforce an individual right, then no individual right.
It’s really odd that you say “I don’t see a damn cite in [PG’s arguments],” right after you acknowledge that I cited Marbury. (You however misunderstand the point for which I cited it in replying to RonF: I said, “At most, [Burris] can demand that his appointment be fulfilled, but that’s Marbury v. Madison stuff — I’m not sure the federal courts will take the case even from him.”)
I also cited this group of cases
http://en.wikipedia.org/wiki/Barack_Obama_citizenship_conspiracy_theories#Litigation
by referring to the challenges to Obama’s citizenship that were dismissed for plaintiff’s lack of standing. I didn’t realize that a blog comment required a citation to U.S. Reports to be understood as citing to caselaw. In prior comments, I’ve also cited Powell v. McCormack and Nixon v. United States.
You, in contrast, can’t be bothered to look up the 17th Amendment when you “don’t recall, nor do [you] really want to recall ;)” the process for a Senate appointment. Which is why I noted that despite knowing much more law than RonF (I assume, for example, that you’re familiar with the concepts of standing and political questions), you’ve made no better legal argument, and you’ve in fact put much less effort than RonF has into discussing the law and relevant precedents at issue.
Instead, you just keep saying, “But it seems fairly obvious as a facial issue that if the right to senators is violated then this is a violation of a constitutional right.” You never say why this is.
The structural provision that the president be a natural born citizen is, in theory, something which accrues a benefit or cost to every citizen equally. Same with the provision that there is a vice president, or the provision that only congress can declare war. Those are structural provisions on a national level. (I do not actually agree with the current court’s line of reasoning on those standing issues, and I think that they were decided more on a political or convenience basis than on real standing. But obviously they are binding nonetheless.)
Congressional representatives are quite a bit different in my view, because the presence or lack of a representative confers an unequal cost on a legally definable class of citizens: the residents of that state. Someone in that class is damaged by not having a senator; I am not.
The question then is who can enforce it.
It may be that only the state (through its governor) can sue. That may well be the case in practice, the theory being that the citizens need to act through the state. It may also be the case taht the courts would defer to potential state action and would discourage citizen suits.
But a secondary question is whether a citizen can sue in theory. The basis for such a suit would rest in my earlier discussion: if a citizen can sue for being disenfranchised in their ability to vote for a senator, it is comparatively illogical to allow them absolutely no opportunity to sue for being denied a senator. So if Illinois said “we will decline to sue but we believe any of or citizens have standing to challenge the Senate’s refusal to seat a senator” would the courts then refuse to hear it at all? I am not so sure that they would.
RonF: that does sound good. But don’t you mean three missing votes?
The courts will indeed decide the issue, unless (say) the nomination of another candidate by a less corrupt governor spurs Burris to do what he should have done originally, and refuse Blago’s offer. The fact that he accepted instead of waiting says to me that he shouldn’t have the job.
Assuming arguendo that the difference between the president/ VP and a Senator or Congressman is sufficient to create a concrete, particularized injury to every resident of the state or district:
But citizens aren’t being denied a senator, they’re being denied a senator chosen by Blagojevich, who apparently is not going to be governor for long. If Illinois can wait a few weeks, it will have a senator appointed by Pat Quinn. My whole disagreement with you, RonF and Phil is whether it’s really a big deal if Illinois doesn’t have a senator for a month (especially, as aforementioned, when the reason is that their former senator is now POTUS).
If the Senate were saying, “We refuse to seat any senators from Illinois,” this would be a different discussion and I think the governor probably could sue on behalf of the state for the state’s representation in the Senate. But of course that’s not what’s happening here at all.
It is? I was under the impression that you and I were disagreeing about the theoretical question of whether or not a lack of a senator could potentially create a right which was individually enforceable in federal court. I’ve already said that I believe any right to have a senator would still need to wait for the mechanisms of process, which I believe is happening here.
It sounds like we have a philosophical disagreement but not a practical one. Philosophically, I view the fact that there’s no senator as a “bad thing”, and I think that it is improper. That said, practically speaking I think that it is acceptable in this case for there to be a short delay while the process goes on, just as most lawsuits force a delay on the aggrieved party.
I don’t think that’s really the right analysis. I think that it is properly characterized as “Illinois citizens are being denied a Senator as appointed under the laws of Illinois.”
That the laws of Illinois may be faulty is an issue for Illinois. to use a similar example, the Senate would not properly be able to say “oh, Massachusetts, we think you did a bad job districting, so we will not seat your Senator.” Those districts are not the Senate’s business.
Unless the laws of Illinois are violative of the US Constitution, I do not think it is the U.S. Senate’s role to override the process by which Illinois appoints its Senators. At the least, the Senate should have taken the option which would cause the least damage to Illinois’ representation. refusing to seat the Senator is an imposition of federal power on a process which should be controlled by the state.
Therefore I think that the Senate could–should–have seated Burris temporarily without perfecting his claim to the Senate, as appears to have been an option.
hf:
First: I should have said “two unaccounted for votes”. Four people didn’t vote to impeach Blago. One voted against impeachment, one voted “present”, but I don’t know who the other two were and whether they voted “present”, “abstain” or if they weren’t around and didn’t vote at all. For all I know there are two unoccupied seats because of resignation/death/criminal conviction/whatever. Given this is Illinois, I’m picking “criminal conviction”.
Events are getting close to overtaking the argument here. From the Chicago Tribune:
You state:
The courts will indeed decide the issue, unless (say) the nomination of another candidate by a less corrupt governor spurs Burris to do what he should have done originally, and refuse Blago’s offer. The fact that he accepted instead of waiting says to me that he shouldn’t have the job.
Here in Illinois there are a lot of opinions stated regarding whether there should be a special election (my opinion = yes), whether Blago should have passed the appointment off to Lt. Gov. Patrick Quinn, what steps the Senate should take in deciding whether or not to seat Burris, etc., etc. But I don’t remember anyone saying that nobody should accept a non-corrupt appointment from Blago.
I think part of it is that people figure that if nobody in Illinois was to accept an appointment from a corrupt government official then we’d not be able to have anybody appointed to anything in the state. I think that part of it is the racial aspect of this; they want to see a black person in the Senate – not that Quinn couldn’t do that, but the reports that Sen. Reid told Blago (before the FBI investigation became public) to forget the 3 blacks that he was thinking of appointing and suggested two white people instead didn’t escape notice. And part of it is that people want to see Illinois have it’s full representation in the Senate ASAP. Apparently most people figure, and I agree (although many here disagree) that the specific appointment of Burris is severable from the previous attempt by Blago to sell the appointment, and that as long as Burris’ appointment is not shown to have been bought by Burris it should go forward.
If you look at the legislature’s impeachment report and listen to the tapes you’ll find that Blago is accused of attempting to sell his signature on bills. Does that mean that any bill he signs should be invalidated regardless of whether or not it’s proven that corruption was involved?
Roland Burris has announced today that Senate Democratic leaders have declared themselves satisfied with his documentation and will swear him in as the junior Senator from Illinois. I believe it’s going to happen sometime tomorrow.
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