Harry Reid, Punk'd By Blago Over Burris, Rejects The Rule Of Law

Harry Reid's back is against the wall.

He thinks that if he doesn't oppose Rod Blagojevich's appointment of Roland Burris to fill Barack Obama's vacant Senate seat, John Cornyn and the Republicans will make the Democrats wear Blago around their necks for the rest of their natural lives.

And on that count, he's probably right.

But the decisions Reid is making right now are politically motivated, with little regard for the law. And the Democrats are only in this position, and looking so compromised, because of bad decisions Reid has made in the past.

How will it look if the Sergent-At-Arms bars Burris from the Senate floor, but did nothing to Harriet Miers and Karl Rove when they defied Senate subpoenas?

How will it look if they refuse to accept Burris into the Democratic Caucus after having accepted Joe Lieberman, who spent years enabling Bush administration crime and corruption as Chairman of the Homeland Security Committee?

How does it look to be screaming about Burris's "taint" when they did nothing for decades about Ted Stevens, and gave him a standing ovation even after he'd been convicted? Or for that matter, their inaction with regard to Larry Craig?

How does it look now that Reid is manipulating Senate procedure to exclude Burris, but simply shrugged his shoulders over Samuel Alito, warrantless wiretapping and the Military Commissions Act?

As one blogger said, "I don't even know what to do when Harry Reid wakes up from his two-year nap and discovers that THIS is a bridge too far."

Walter Dellinger argues that after eight years of executive contempt for the rule of law, the most important thing right now is not whether Burris is seated or not, but that Reid's actions be impeccable:

If we are serious about the "rule of law" our first principle should be that the Senate's power to decide (even if unreviewable) is the always and only the power to decide correctly under the law, not the power to decide however the majority of the Senate prefers to decide. The fact that some grounds for rejecting Burris might be unreviewable by the courts means that the Senate should take more care, not less, to be sure it is acting a constitutionally legitimate manner.

Blagojevich's appointment is, of course, a shameful act by a disgraced Governor, a blight on the reputation of Burris for accepting, and a political embarrassment for Democrats. The proper question, however, is whether the Senate, acting in good faith, can reach a conscientious conclusion that this appointment, however unwise and unwelcome, is also unlawful under Illinois law or under the United States Constitution. If it isn't unlawful, he has to be seated.

That is not, however, the way in which Harry Reid is comporting himself at the moment. Rather than advocate to strip Blagojavich of the power to make the Senate appointment, Reid didn't want to risk losing the seat in a special election and wrote a letter in opposition, urging Blagojevich to step down instead.

We all know how that worked out.

Then fifty members of the Democratic Caucus signed a letter saying they would oppose any Blagojevich appointment from being seated -- without due consideration as to whether the Senate had the right to do so. Although there is considerable disagreement on that front, it is not at all certain that they can.

Now Illinois Secretary of State Jesse White says that he will not sign the appointment of Roland Burris, and it isn't clear he has the legal authority to do that, either:

Signing the certification is a ministerial act, not an established right of veto. The decision on who to appoint is the governor's and the governor's alone under Illinois law; there is no power promulgated for the SoS to have decision making authority. If White can simply refuse to sign the certification, and that stops the process in it's tracks, he would have unmitigated veto power over the appointment. He does not.

But rather than try and determine whether this was a legal action, Reid called White and egged him on, to "thank him for his strong position on this important matter."

Reid intends to use this "lack of certification" to deny Burris the right to be sworn in on this coming Tuesday:

Should Burris appear in Washington without that certification, armed police officers stand ready to bar him from the Senate floor, said a Democratic official briefed on Senate leaders' plans.

Is any of this legal or ethical? That isn't a question Reid seems to be asking.

As Dellinger notes:

Less important than the conclusion reached is the importance of having the Senate make a good faith effort to answer it according to its best understanding of the law rather than on the basis of sheer unreviewable power. Rejecting Burris without first ascertaining that there is a solid legal basis for doing so would be a greater stain on the Senate's honor than seating someone who foolishly accepted appointed by a knave.

If Reid doesn't stop allowing political expediency to be the ultimate arbiter of his actions, the only clear winner is going to be George Bush and his legacy of contempt for the rule of law.

Jane Hamsher blogs a firedoglake.com

Comments

[dsws]

Hello? The process by which Burris was appointed wasn't a routine act by a governor alleged to have previously committed a crime. It was the alleged crime. The IL SoS doesn't have authority to act on his own judgment about a mere allegation, even one so blatantly true as this. But the Senate does, and it comes straight from the US Constitution, so no state or federal law can limit it.

[disconcerted08]

Harry Reid loses more and more credibility every day. I'm starting to believe he is a closet Republican. What frustrated me most about his MTP appearance was his constant talk about "bipartisanship". The Democrats do not have to do anything in a bipartisan manner. The Republicans have never been bipartisan and are the most obstructionist group imaginable. The Democrats control the White House and both Houses of congress- SET THE AGENDA!! It's time for Reid and his fellow Democrats to grow a pair.

[redhot200822]

What's scary is that between Reid and Pelosi, Reid is the smart one!!!

[schatsie]

This is pretty darned silly, they all stood by while Clinton was dragged thru the mud, and when George Bush went to war, just jumped in the stupid boat... and never impeached him...Darn it, this is disgusting that they act like they might have a spine now, but not when Paulson came in for his 700 billlion dollar BLANK check...I want them all to resign and get more people like Al Franken in there.

[sciphy]

I commend the IL secretary of state for refusing to certify the Burris appointment. This action has placed the nomination in the hands of the IL Supreme court. Sadly, the Supreme Court will likely "pass" on this decision and require Jesse White to certify the nomination. Some true legal interpretation is really what is required here, and so this anticipated decision by the Supreme Court will be disappointing. Lisa Madigan had the right idea when she asked the court to remove Blago for being unfit. The nature of the criminal complaint against the Governor has rendered him unfit.
And for those who wanted a special election-- great idea, but what Governor would need to that legislation? Yup, that would be the hair himself. Not likely to happen.
Rock - People of Illinois - Hard Place.

[StillAmused]

Said the scorpion to the frog, "It's in my nature".

(look it up)

[ArchAngel]

Perfect analogy.

[DinkSinger]

Nobody should be sworn in unless they have the necessary certification. This applies to Burris and it applies to Franken. Jesse White has not yet signed the Certificate of Appointment so Burris is not yet a Senator, period. The Senate has the duty to "judge the ... returns ... of its members", but that can't be done until the return exists. It is very, very simple law.

Burris has sued White in the Illinois Supreme Court. That is the appropriate place for this particular legal argument to be decided. If the court compels White to sign, seal and deliver the Certificate of Appointment, the Senate will then have the Constitutional duty to judge it. Ordinarily this would be a formality, but in this case there are very good reasons to judge the appointment void. Just because the Governor has the legal power to appoint, an appointment is not necessarily legal. Certainly if someone literally held a gun to the governor's head and demanded that John Doe be appointed, the appointment would be void since it was made under duress. It may well be the appointment of Burris is void because the governor acted in "bad faith". There is plenty of evidence on the tapes that Blagojevich did not intend to make a "good faith" appointment. It is up to Burris to provide the Senate, if he gets that far, with convincing evidence that the Governor changed his mind.

[Ronp]

Whether Mr. Burris is the right choice though he appears qualified remains to be seen. I'm deeply concerned by the apparent disregard of one of America's most sacred precepts; the presumption of innocence. If Gov. Blogojevich is physically or mentally incapable of carrying out the daily duties required of a governor would be one thing, but care is in order lest we may get what we wish for.

Members of the US Senate posturing in the press to prevent Mr. Burris from being seated is equally confusing. Is the Senate an "old boys club" mocking our professed democracy by self anointed gatekeeping? Remember Adam Clayton Powell, Jr.

We just completed an exhaustive presidential election cycle characterized by a massive character assassination strategy to politically destroy the Democratic candidate via a nauseating and repetitive guilt by association campaign. In spite of it all now that Barack Obama will be President Obama, are we throwing stones? How is it that the oppressed are so quick to use the tools of oppression against enemies perceived or real?

Indeed these are strange times we live in!

I believe the accusations against Gov. Blogojevich should proceed through the courts and his appointment of Mr. Burris be judged separately and on the merits of his qualifications. If the state of Illinois wishes to mandate elections in similar situations henceforth, then change the constitution - legally. Finally shine a bright light on internal US Senate behaviors that threaten the will of the states and people.

[scooperss]

Best and favorite post on the subject.

[JimR]

Agree wholeheartedly.

[rlcarpa]

It is amazing that no matter how goofy the Democratic leaders act, liberal pundits seem to find a way to bring up George Bush. Gearge Bush had and has nothing to do with the whole Illinois political mess. It is ALL illinois and national Democrates that are messing up the works and making fools out of themselves and wasting taxpayers money. Blago has NOT been indicted or convicted of anthing and the Illinois constitution stipulates that he has the CONSTITUTIONAL right and duty to appoint the replacement for Obama. It is too bad when the law gets in the way of political expedience. When will liberal news types recognize the rule of law? By the way, George Bush will be out of office in less than three weeks. Who will you blame for the goofiness of the Dems then? When will you let your shear hatefullness for this man go and think of the American people rather than the Democratic political agenda. Why isn't anyone investigating Harry Reid's calls to Blado about the Senate replacement?

[ExpatDane]

Blago not Burris, Blago not Burris, Blago not Burris. Fight the repugs Reid. Not members of your own party. It is time for the wimp Reid to go.

[LeLoup]

LOL!
Harry Reid does what he does with a single goal in mind: political expediency.

[dukeitout]

Blago, as bad as he may be, has properly appointed a replacement for Sen. Obama. Sen. Reid and the other senators cannot exclude someone from that chamber simply because they feel it's the right thing to do. I'm confident the courts will set the senators straight unless the senators cave in to seating Burris before it becomes a court issue. Thank goodness we have the courts.

[bas1311]

Harry Reid has been a complete abomination as majority leader. When it comes time for him to make a choice, he has made the wrong choice every single time. It's time to elect people to the Senate who are competent and choose the leadership based on ability, not based on age. If Burris isn't involved with Blago's shenanigans, then seat him and be done with it.

[Citizen54]

Indeed, Reid is terrible and ought to be dethroned from the "leadership" position. We can only assume two things: His fellow do-nothing Democratic senators approve of his lack of guts (Schumer et al, all as spineless as Reid, or as complicit), and he has something on every single one of them. (How did this dude get the leader job in the first place?) They're all in cahoots, I tell you.

[scooperss]

yup good ole boys club indeed.

[tanbark]

This is for Jane, and all the rest of the "legality" pearl-clutchers:

http://apnews.myway.com/article/20081231/D95DBMD81.html

[jcwtts1]

http://supct.law.cornell.edu/supct/html/historics/USSC_CR_0395_0486_ZS.html

read it. I never even though about the pay. But it is like 4 hundred thousand dollars right?

(a) The Court's examination of relevant historical materials shows at most that Congress' power under Art. I, § 5, to judge the "Qualifications of its Members" is a "textually demonstrable constitutional commitment . . . to [that] co-ordinate political department of government" (Baker v. Carr, 369 U.S. 186, 217) to judge only standing qualifications which are expressly set forth in the Constitution; hence, the House has no power to exclude a member-elect who meets the Constitution's membership requirements. Pp. 518-548.

[Kassandra]

This is a VERY interesting article:
The trouble for Democrats is that it looks increasingly likely that there will be no resolution to the contested Minnesota Senate race by next Tuesday. If that happens, Democrats may have two uncredentialed Senators on their hands. Democrat Al Franken has all but declared victory in the Minnesota recount. Couple that with fellow Minnesota Senator Amy Klobuchar's (D) call for the Senate to seat Franken based upon the tally of the recount, before any legal challenges are completed, and Franken may very well show up in the Capitol on Tuesday alongside Burris.

But Republicans have been preparing for just that eventuality, and Sen. Reid has handed them the strategy to block Franken with his position on Burris. National Republican Senatorial Committee Chairman Sen. John Cornyn (R-TX) says that Senate Rule 2 applies to Franken just as equally as it does to Burris.
http://news.aol.com/political-machine/2009/01/03/gop-to-play-by-harry-reids-rules-with-al-franken/

Reid needs to go.............

[jcwtts1]

http://supct.law.cornell.edu/supct/html/historics/USSC_CR_0395_0486_ZS.html

There is a case which is controlling here. The relevant parts are -

7. In judging the qualifications of its members under Art. I, § 5, Congress is limited to the standing qualifications expressly prescribed by the Constitution. P. 550.

None of them have anything to do with whether or not a gov may or may not be impeached.

J