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Thursday, January 01, 2009


by digby

My good friend Big Tent Democrat is disturbed by the intellectual errors committed by Jane Hamsher and myself on the Blagojevich case and has called me out for it specifically. So, seeing as this is a dead day in the blogosphere and I've just had some very strong coffee, I think I'll indulge myself and reply. I warn you --- this will be boring. (Oh, and I'm "speaking for me only." Jane can certainly speak for herself ;)

He believes I'm completely wrong when when I write that the AG of Illinois showed a lack of respect for the law when she tried to have Blagojevich removed from office by the Supreme Court and I'll try to answer that in a couple of ways.

First, the fact that she was one of the people being considered by Blagojevich for the seat (she's "Senate candidate #2" in Fitzgerald's complaint) and the fact that the court declined to even ask Blagojevich for a response before turning down her request shows that it was bad political judgment if nothing else and it may very well come back to haunt her as this case goes forward.

But also it showed a disrespect for the democratic process which requires that a democratically elected governor must be impeached by the legislature in order to be removed from office. The idea of unelected judges removing duly elected representatives strikes me as being a very bad idea. Sure, AG Madigan had a legal right to file the motion, but it showed a cavalier disregard for the intent of the law --- even if there is a law on the books providing the court the ability to remove someone who is incapacitated (read: in a coma) that doesn't mean those laws should be loosely applied for political purposes. Having it done by a partisan Attorney General who is involved in the scandal herself strikes me as nothing short of "Gonzalesesque." (After all, it was perfectly legal for Bush to fire the US Attorneys at his discretion --- that didn't make it right or smart for him to do so. )

Blago has only been accused of a crime, he hasn't been convicted, and he has every right to be judged according to the rules. Attorneys General, above all others, should respect those processes and not try to use the courts to circumvent them. Prosecutorial discretion is never more important than political cases which could overturn the electoral judgment of the people. Ask Don Siegelman.

As for my supposedly saying that Burris has a better claim to a seat than Lieberman, I implied nothing of the sort. I've never argued that Lieberman should be expelled from the Senate or that they should have refused to seat him. But the fact is that nobody elected Lieberman to be the Homeland Security chairman -- he was appointed to it by the Democratic caucus --- and they can un-appoint him any time they want. That's party politics for which the rules are quite different than electoral politics.

Furthermore, the fact that the Democrats politically rewarded someone who actually campaigned for the GOP presidential candidate while threatening to lock out this fellow who meets all the requirements and will likely be a much more loyal backer of the Democratic cause, is politically obtuse, particularly with the racial aspect unfortunately being thrust into it as well. (Welcome to big city machine politics, Harry.) But there is no legal comparison between the two cases and I never made one. It's a political argument.

Finally, far be it for me to even voice an opinion on the lofty constitutional issues regarding the Senate's right to refuse to seat Burris, not being a constitutional lawyer and all, so I'll defer to someone who is one. This is from a discussion last night on the News Hour

Dick Durbin: (video) ...What we saw today was an act of political defiance despite the fact that the Democratic caucus has stated clearly that they will not seat his choice for that position.

Ray Suarez: Can the senate refuse to seat Roland Burris when the senate convenes next week? And what will be the political implications of taking such an action? For that we turn to political reporter Carrie Budoff Brown and Abner Green, professor of Fordham University of school of Law in New York.

Professor Green, not only has the Democratic caucus been adamant that it will not seat Roland Burris, but a lot of people are wondering, can they do that? What does the constitution say?

Green: I think the best argument is that they have to seat him. He fits the qualifications -- he over 35, he's been a US citizen for over 9 years, he's a citizen of Illinois, and the 17th amendment process has been followed. The state of Illinois gave the governor the power to make this appointment and he made it, so the strictly formal reading of the constitution is that they have to seat him.

Suarez: Are there ways of reading "qualifications" and are there articles in the constitution that sets out the senate's ability to regulate its own members that might give Harry Reid and the Democrats some daylight here?

Green: First of all they have a case against them called Powell vs McCormick that involved New York congressman Adam Clayton Powell. The House had refused to seat him because of charges of corruption, and the US Supreme Court held that qualifications only means the age, US citizenship and residency criteria and therefore the House had to seat Powell. So that cuts against what Harry Reid wants to do. The argument in his favor is that the constitution also gives the senate the power to judge the elections and returns of its members. That would clearly apply in cases where an election was corrupted or tainted or a contested election. The question is whether they can apply that language, elections and returns, to a case of an appointment under the 17th amendment. Remember the constitution was written in 1787 and the 17th amendment came about in the early 20th century and so what they're trying to do is connect up their power to judge elections and returns to their power to judge an appointment in this situation.

Suarez: What grounds are senators talking about as grounds for them refuse to seat anyone appointed by Governor Blagojevich?

Carrie Budoff Brown: It is the fact that the process is tainted and the appointment itself is tainted. And that's where they're making their argument that anybody Governor Blagojevich appoints would not be acceptable. And that's where they're laying down the marker and that's why you saw Harry Reid jump out do quickly and so forcefully yesterday. They laid down a marker several weeks ago pretty much vowing not to give Governor Blagojevich credibility and if they had accepted this appointment, they would be going back on what they said several weeks ago so that's why I think we're seeing this now.

Suarez: How does this square with the quiet reaction to the indictment and trial of the sitting senator from Alaska, just a few weeks ago?

Brown: Sure, there are quite a few examples of that in the last years of senators running into legal troubles and they have been allowed to stay in the senate. However, here you're seeing a case of someone coming into the senate vs someone who is already there and in the case of Senator Stevens, until he was indicted, you didn't see a movement for him to be ousted from the senate. So again, Harry Reid and Dick Durbin, his second in command, they're talking about the process being troublesome, not so much the person.

Green: If I could jump in on that. They had a little cover with Stevens. They had to wait to see if he was going to be reelected and he wasn't, so they were spared that. But if he had been reelected and had refused to resign, there's a separate provision in the constitution that gives the senate the power to expel a member by a two thirds vote, but that provision does not apply to whether to admit a member, separately.

Suarez: This has to do with the only vote that matters, which in Illinois is the vote of Governor Rod Blagojevich. If the senate looks across the landscape and sees that Illinois law was followed, does it have any precedent for not seating a member?

Green: I don't think so. They have to make this creative argument to extend their power to judge election and returns to a power to judge appointments. I think what they should do is let Patrick Fitzgerald and the Illinois legislature pursue Rod Blagojevich. And if they believe Burris himself is untainted then they should seat Burris.

(I suspect that a lot of people will find this high regard for abstract "process" somewhat bizarre in light of the fact that they blithely allowed Larry Craig to sit in the senate for two years, while this man who has not even been accused of wrongdoing will be barred from the door. The optics are terrible.)

Burris has been appointed by a duly elected Governor (again, who hasn't even been indicted, much less convicted of a crime) and who has acted fully in compliance of the law. He meets all the qualifications of the office. There's no good reason to reject him except for what Chicago journalist Jim Warren said was the primary problem --- "he's a lovable loser who won't be able to keep the seat in 2010" --- and pique that Blagojevich has defied them. Those are not principled reasons and they should just take their medicine. If something shows up against Burris on this case, they can expel him, which they clearly do have the constitutional right to do (but which they never actually do once somebody becomes a member of the club.)

This whole thing is a mess and there aren't any simple ways to clean it up. But nobody's covering themselves with glory. The legislature could have impeached Blago in a day if they really believed he needed to be gone (and you have to wonder just why it is they aren't doing that.) They could have also passed a law calling for a special election and even passed it over Blago's veto if necessary, and they didn't do that either (partly at the behest of Harry Reid.) Now that Blago is using his power to shape his legal argument (which, after all, rests on the idea that he never intended to sell the seat) everybody's running around with their heads cut off because he's not playing fair. Well, boo hoo.

They have handled this badly on the politics and they had better get their act together. The whole Obama gang is from Illinois and I'm surprised that they've allowed themselves to be punk'd by Blagojevich --- and from what I'm hearing, they are about to make it even worse. Chuck Todd sagely opined yesterday that Reid wanted to draw this out through the courts as long as possible.

That's sheer political genius. Let's milk this stupid story by bringing it right into the capitol and the federal courts. Why, if we're really lucky we can spend a lot of time revisiting the cases of other senators who were actually convicted of crimes but who the senate refused to expel and then we can talk a lot about the last time the congress tried to keep from having to seat a black man and how it relates to their latest efforts to keep the senate lily white. It's all hot political theatre that will take up precious oxygen and use precious political capital.

Obviously, people differ on the correct interpretations of the law and constitution on this issue. It's not like there are a lot of precedents. But when it comes to things like this, I always look to the underlying principles, which it seems to me are obvious: when it comes to removing duly elected representatives from office, we should proceed very, very carefully and try not to make new law whenever possible. The last thing you want to do is give politicians more tools with which to usurp the democratic process. Even though this applies to an appointment there is no reason to allow the senate a new "right" to reject members, for any reason.

For the good of the constitution, they should respect the rules as they are clearly written, which as Professor Green says, requires a very "creative" reading of the provision about elections and returns to justify their action. The old document has been battered around quite a bit these last few years. It could use a rest. Instead, as Will Bunch writes here, they should seat Burris and then immediately introduce an amendment to require that all vacant senate seats be filled through special elections. This appointment process is a throwback to the days when the legislatures elected senators and didn't met often enough to fill vacant seats in a timely manner. There's no reason for these laws anymore and as we've seen with these recent appointment soap operas, it's time to change the constitution to make sure the people are the ones making these decisions, not judges or governors or senators. The whole spectacle is unsavory and undemocratic and it leads to a lack of legitimacy for our representatives and institutions.

I realize that it's bizarre that a disgraced governor could legally appoint a senator when he's accused of trying to sell the senate seat in the first place. But I just don't see a good political or legal basis for rejecting him. And neither do many legal beagles who, unlike myself, have the standing to weigh in on such important matters. It appears that my understanding of the law and the constitutional principles involved here are pretty mainstream.