As I wrote even before Rod Blagojevich appointed Roland Burris to the United States Senate: "The standstill between Blago and his fellow Democrats is a problem of the party's making. It would actually be best for everybody if the governor were to fulfill his obligation to choose a new senator." With every moment that ticks by, the truth of that contention becomes more evident, and Harry Reid's outrageous obstinance becomes a greater liability. In a Los Angeles Times editorial published Tuesday, respected law professor Erwin Chemerinsky reduced this pathetic spectacle to twelve salient words: "... the taint of Blagojevich's alleged crimes does not justify ignoring the Constitution."
What Chemerinsky didn't mention is that the Illinois law pertaining to a governor's obligation to fill a vacant senate seat might be even more significant. That's because the Senate can't present itself with a senator; it can only judge whomever Illinois presents to it. As such, any genius who insists that someone other than Burris could now replace Barack Obama, has the responsibility to explain under what conditions someone in the State of Illinois might have the authority to "unappoint" Blagojevich's appointee. I don't see how the Illinois legislature or governor (whomever it is) is so empowered, because an appointment such as the one that Blago rightfully made of Burris, remains in effect until the next regularly scheduled congressional election.
Therefore, if Reid continues stonewalling, absolutely nothing productive will come of it. Illinois and the Democratic Party would still be one senator short. What an accomplishment!
Constitutional law expert Sanford Levinson agrees with my analysis. In an email, he told me "that someone in Illinois would have to get a court to agree that the appointment was invalid from the start, so that there is in fact a present vacancy that needs to be filled." The grounds for such a decision seem nonexistent no matter how much alarmists fret over a big, bad, scary taint. Walter Dellinger, who spent four years running the Justice Department's Office of Legal Counsel, reaches the same conclusion in Wednesday's New York Times.
Reid's flimsy argument was hardly bolstered Tuesday when Dianne Feinstein, who currently heads the Senate Rules Committee, called for Burris to be seated. That's the committee that had been rumored to be on the brink of implementing Reid's useless stalling tactics, although the Associated Press now reports, "Senate officials of both parties widely predicted that the saga would end with Burris being seated."
Burris has asked the Illinois Supreme Court to rule Secretary of State Jesse White must certify his appointment. Some have called White's refusal to do so an act of civil disobedience, a characterization I reject because the term implies an injustice is being protested. But since there's nothing at all wrong with the statute that requires him to perform the ministerial task he has so far petulantly avoided, and because his malfeasance has been used to aggrieve the lawfully appointed Burris, White should be harshly condemned at the very least.
Last Sunday on Meet the Press, Reid expressed a willingness to negotiate. But when he and Burris meet in Washington on Wednesday, it is the new junior senator from Illinois who will show up in the stronger position, with Reid being the one who must yield lest his illicitness become too apparent to the public, and too distracting to legislators. The other problem facing Reid is that the Illinois Supreme Court will almost certainly rule in Burris's favor within days if not hours, effectively forcing the knavish White to affix his cheap signature to paperwork that will leave the Senate Majority Leader deservedly annihilated.
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