Props to Reid

I realize it’s fashionable among conservative bloggers to bash Harry Reid (D-NV, the Senate Majority Leader) for whatever reason, but the recent attacks on him for refusing to seat Roland Burris (D-IL) are inane.

The Constitution gives each House of Congress the authority to judge its own members. From Article I, Section V, of the US Constitution:

Section 5: Each House shall be the judge of the elections, returns and qualifications of its own members, and a majority of each shall constitute a quorum to do business; but a smaller number may adjourn from day to day, and may be authorized to compel the attendance of absent members, in such manner, and under such penalties as each House may provide.
Each House may determine the rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two thirds, expel a member.
Each House shall keep a journal of its proceedings, and from time to time publish the same, excepting such parts as may in their judgment require secrecy; and the yeas and nays of the members of either House on any question shall, at the desire of one fifth of those present, be entered on the journal.
Neither House, during the session of Congress, shall, without the consent of the other, adjourn for more than three days, nor to any other place than that in which the two Houses shall be sitting.

That some “conservatives” are now criticizing Reid by relying on an activist decision by the Warren Court should be a warming that many so-called “conservatives” are just Republican Party hacks who jump at any opportunity to embarrass the Democrats.

Hopefully after Governor Blagoevich (D-IL) is impeached, the next Governor can appoint someone appropriate to the seat. I have previously suggested that Tammy Duckworth is sufficiently Obamariffic for our age, and his scathing review of her by Firedoglake emphasizes my view. Anyone Firedoglake despises can’t be all bad!

16 thoughts on “Props to Reid”

  1. Burris is going to win this. Blagojevich is the governor. He is within his powers to appoint the senator. The legislature could have acted to strip him of the power, and it chose not to. He has not been impeached. He has not been convicted of any crime. He was elected, he has the powers of this office, he exercised the power to appoint a senator. You may not like that Supreme Court precedent, but it is the law, and any court will act accordingly. The lawful grounds for rejecting a lawfully elected or appointed Senator, which Burris is, are limited, and none of them apply here. If Burris goes to court, he’ll win.

    I notice that Diane Feinstein, one of the sharper tools in that particular shed, has said pretty much what I said.

    And it is the right outcome. People elect a governor, and they have the right to have that governor act within his powers until he is lawfully removed, or they elect someone else.

    Blagojevich is a schmuck. But the powers of his office should not be undermined because he is a schmuck.

    This is just one more anti-democratic power grab.

  2. Lexington,

    If we assume that people typically act in their self-interest, then we should expect the state official to argue that state officials should be able to decide this, the Senate Majority Leader to argue that the Senate should decide this, and the Courts to argue the Courts should decide this.

    So far, first two check. The third wouldn’t surprise me.

    However, the Congress is not a creature of the Courts, as it is not a creature of the Executive – it is a co-equal branch of government.

    Now, what actually happens will of course be a political matter. Still, the only entity capable of forcing the Senate’s hands is the Senate itself (as you indicate, Sen. Feinstein may be trying to do).

    This is just one more anti-democratic power grab.

    Obviously’ it’s an anti-democratic power grab. Specifically, it’s a Republican power grab. The people have elected representatives who decide for them.

    That the Senate Democratic leader is arguing the republican case, and Republican talking heads are arguing the democratic case, is distressing. The GOP built up too much intellectually in the 1980s and 1990s to so quickly become the party of embarrass-the-other-guy.

    Seerov,

    Great satire!

  3. “Now, what actually happens will of course be a political matter. ”

    I think it will be resolved by litigation, with a federal court ordering the Senate to seat Burris. So, I don’t agree with your “of course”.

    What the motives of the parties are is irrelevant. I see no ambiguity on the law. Burris the junior senator from Illinois. Whether he is smart to want that job under these conditions is another question. But if he wants it, and he perseveres, I see no way he does not get it. Maybe someone will talk him out of it. But he seems pretty committed to getting it.

  4. Lexington,

    Thank you for the comment.

    The ambiguity, if we call it that, is that while the Constitution is clear on the matter (giving each House of Congress, and not the Courts, the power to judge “the elections, returns and qualifications “, and putting this in Article I, not Article III), the Warren Court strongly disagreed.

    Given that in our system of government we repeatedly have questions of one branch attempting to control the others (Congress attempting to control the Presidency in the War Powers Act, for example), it’s not surprising we regularly have political questions. I am sure that those who focus their attention on the Executive hold a view that ultimately nearly everything should be up to the executive; that those who focus their attention on the Legislative hold a view that ultimately nearly everything should be up to the legislative; that those who focus their attention on the Judicial hold a view that ultimately nearly everything should be up to the judicial.

    I do not see how this ceases to be a political question. Unless we are looking forward to Reid having being given a glimpse at transcendental Truth, he will or will continue this based on his political conditions and calculations. This will become easier or harder depending on what the courts do.

    A complementary controversy was the FBI’s raid of William Jefferson’s office, which was widely considered to be a violation on the part of the executive on the sanctity of the Congress.

  5. “I do not see how this ceases to be a political question. … he will or will continue this based on his political conditions and calculations.”

    And he will or will not prevail depending on what a federal court rules when Burris files a complaint to get the court to Order the Senate to follow the Constitution and seat him. And we know what the federal court will rule because there is unambiguous Supereme Court precedent, which the federal court has to follow. Whether or not your or I like that decision (I do, you apparently do not) or even whether the federal judge who is assigned the case likes it or not, it is clear and it is on point and the court will have to follow it.

    I do not think that Harry Reid will continue the fight past the point, if he has not given up already.

    Bottom line: Blagojevich’s enemies in Springfield could have stripped him of this power, but they did not want to do so, because that would have led to a special election, which the GOP might have won. They could have tried to impeach him, but they had little basis to do so, as yet, and they knew it. So, they did nothing. So they left the power in his hands, hoping, on God knows what basis, that he would not exercise it. He did.

    Now everyone is stuck with his decision.

    Unless Burris crumbles under the pressure, he’s got it. And like Blago, he seems to be incapable of embarrassment.

    I think it is checkmate.

  6. Looks like the Senate is caving.

    http://cbs2chicago.com/politics/burris.senate.democrats.2.901914.html

    Also, the issue here is indeed a balance of powers issue. But it is not between the Federal branches. It is between the states and the Federal Gov, in this case the Senate.

    The Senate cannot just reject a lawfully appointed senator because they find the governor who made the appointment to be distasteful, where the governor was lawfully elected, and is not impeached, indicted, convicted of anything, or otherwise legally disabled.

    We cannot go down that road, where the Senate can just say, “don’t like this one, send another.” Sen. Feinstein is right to see the potential hazard this presents.

  7. “I do not think that Harry Reid will continue the fight past the point, if he has not given up already.”

    It seems he has given up already.[1]

    “WASHINGTON – The fate of Roland Burris, the Illinois lawmaker named by Gov. Rod Blagojevich to President-elect Barack Obama’s vacant Senate seat, appeared closer to resolution, with the Associated Press reporting Wednesday that a deal had been reached to seat Burris”

    On Monday night someone on Chris Mathews was suggesting that a back room deal may be in the works for Burris to sit for two years but promise not to run for reelection. I’m not sure how that agreement would be enforced, I imagine Obama could just show up and endorse whomever runs against Burris in the primary but that would be very uncool for a sitting president.

    It is too bad this tainted appointment could not be stopped. Hopefully,the voters of Illinois will allow Burris to retire in 2010.

    [1] http://www.msnbc.msn.com/id/28507873

  8. There is no reason for Burris to cut a deal. He’s the Senator. All the relevant boxes have been checked.

    “I’m not sure how that agreement would be enforced …”

    It can’t be. It won’t be. He should tell them “see you in court” if they try to make him agree to any deal.

    Then, most importantly, the people of Illinois get to reelect him, or not, if he runs in 2010.

  9. Certainly those who let themselves believe that we have seen the last of race-based politicking with Obama’s election have been bamboozled. The Senate Majority Leader announced how any nomination by the Governor would be treated: the Governor and his allies proceeded to nominate a black, use racialist rhetoric (lynching, back doors, turned away, criticizing “white women” etc), and apparently will get his wish.

    Is there anyone who believes this would have gone the same way if Blagoevich named 71-year-old former white AG of Illinois to the Senate? Of course not.

    Lexington,

    There is no reason for Burris to cut a deal. He’s the Senator. All the relevant boxes have been checked.

    They may well, be if the Senate checks them.

    It can’t be. It won’t be. He should tell them “see you in court” if they try to make him agree to any deal.

    I don’t think it will come to this — by creating a racial media circus, Burris seems to be embarrassing Reid into giving him what he wants, anyway.

    That said, if the Senate was interested in asserting its Constitution powers, it should merely reiterate that the Constitution gives, and now the Court, to judge the “the elections, returns and qualifications” of its members.

    Then, most importantly, the people of Illinois get to reelect him, or not, if he runs in 2010.

    Why is that most important?

    Brent,

    On Monday night someone on Chris Mathews was suggesting that a back room deal may be in the works for Burris to sit for two years but promise not to run for reelection. I’m not sure how that agreement would be enforced, I imagine Obama could just show up and endorse whomever runs against Burris in the primary but that would be very uncool for a sitting president.

    Heh — this morning, Chris Matthews said there was something scandalous about Burris not being in, because he would be the only black Senator.

    Burris’s ace in the hole is his skin color, especially with a Democratic establishment that supports such racism.

  10. Disturbing (from the article):

    . Justice Black, he says, was troubled by the British House of Commons’ practice of not seating members whom a majority opposed. I encountered this phenomenon in my research for Our First Revolution: The Remarkable British Upheaval That Inspired America’s Founding Fathers. In the late 17th century and through most of the 18th century, many of those purportedly elected to the House of Commons were barred from taking office while their seats were contested, and it seems to have been common practice for the House’s effective majority to decide those cases on partisan lines

    This is an example of the judicial activism that has done so much harm to our Constitution.

    1. The British House of Commons has an ancient tradition of using its power to judge the qualification of its members
    2. The US Constitution is written in such as way that unambiguously gives the House of Representatives the power to judge the qualification of its members
    3. A 20th century supreme court justice does not like the tradition, and writes an opinion with the political end of overturning it

    Barone’s conclusion is of course completely irrelevant to the controversy around Burris (which had to do with a remarkable attempt to deprive a Governor of power by ignoring him).
    4.

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