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
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