Balkinization: Is the dam about to burst re Burris?

Comments:

Looking forward to future temporary Senate appointments, why not repeal/amend part of the Sevententh Amendment to let the state legislatures reserve temporary appointment power to themselves?

Or to permit Congress to alter a state's temporary appointment procedure, somewhat like ARticle I Sec. 4 ("the Congress may at any time by law make or alter such regulations . . . ."). If, as in this case, the process lasts well into the next legislative session and the state political machinery can't seem to fix the problems itself to reach an acceptable outcome, Congress may be in a position to impose a fix sufficient to get a senator seated with some political (and legal) legitimacy. At any rate, the people will have their say eventually.

To the extent that corruption is a problem that will recur, it's possible we would be better served by having state legislatures do the job. The appointment would only last until the end of a term (in theory avoiding the corrupt entrenchment of either the wealthiest or those most pliant to the demands of state legislatures). I'd wager laws prohibiting improper influence upon a temporary senator by state legislators would help protect the independence of the senator.

Further, I have a hunch that if the leadership in the Illinois senate wanted to trade the seat for something of value, the intense press coverage of a rare political event would be likely to ferret it out. At least, any whiff of corruption would likely be picked up by someone and leaked to TPM or Huffington Post, etc. and the punditocracy may use MSNBC or FOX to drive a story to cow the offending party.

# posted by

Lentils and Curds : 11:14 AM

AP is reporting that the Senate Dems have stopped the nonsense and will accept Burris.

# posted by

Bart DePalma : 11:39 AM

I, of course, disagree and think Prof. Amar co-wrote a better one. Starting things off by citing Powell, when (as Amar et. al. noted) it is fairly easily distinguished didn't help.

I'm glad the senator from California is suddenly concerned about the law, btw. Perhaps, now that she is, she will faithfully follow other ones, including involving the 4th Amendment and so forth.

As to how "typical" the majority leader is, is that how we do things now? In fact, Nevada is a "purple state," so is a better judge in certain respects than others.

BTW, good op-ed in the NYT today on the probably more important (and textually clear, probably) issue of special elections in case of vacancies.

As to the late news, glad to see that Bart has a website, the fact the Senate will pragmatically do something does not mean the alternative is forbidden. The ability to negotiate is helped when you do not only have one path that you must take.

# posted by

Joe : 11:48 AM

I wonder what Bart will say about the GOP if there is a full Senate vote and the Republicans vote en masse not to seat Burris.

# posted by

Steve M : 12:02 PM

I don't really get the shot at Nevada either. In your uberdemocratic fantasy land, where would the Majority Leader hail from, exactly?

# posted by

Asher : 12:10 PM

Steve:

1) The Dem Leadership will not hold a vote to seat Burris and draw further scrutiny on the embarrassment of seating a senator chosen by their corrupt Dem Illinois governor.

2) If a vote was held, the GOP will vote unanimously to seat Burris to embarrass the Dems.

This nonsense has nothing to do with the law and everything to do with political CYA.

# posted by

Bart DePalma : 12:14 PM

Considering Bart's track record on predictions, such as the 2006 and 2008 elections, I can't wait to see how this one turns out.

# posted by

Steve M : 12:31 PM

So, maybe I'm naive or something..

Since Gov. Blagojevich is still the (non-indicted, non-convicted, non-impeached) governor of Illinois, isn't his appointment power (as granted his office by IL law) still intact? The fact is, he made the appointment while he was still fully (in EVERY legal sense of the word, near as I can tell) in possession of his office and its prerogatives, so at the end of the day, isn't this all just a useless delaying tactic?

Let's say that Gov. Blagojevich IS impeached AND removed from office.. Doesn't Mr. Burris still have a strong case? After all, the appointment was made while Gov. Blagojevich was within his rights to do so. What would prevent Mr. Burris from making a legal challenge against any future appointment made by now-Lt.Governor Quinn, on the basis that HE was appointed first?

# posted by

Zachary : 1:02 PM

I don't get the last parenthetical sentence. I don't think Reid has been particularly effective as Senate Majority Leader, and he certainly has looked like a fool during the Burris episode, but what does that have to with being from Nevada?

# posted by

sean : 3:38 PM

Focus on the gov. having some "authority" to pick someone ignores the issue -- the question if said authority is praticed legitimately.

To take an easier case, if Burris was bribed, or an election was a result of the like, the fact that "legal" voters were involved is somewhat besides the point.

Admittedly, Burris' spin confuses things.

# posted by

Joe : 1:53 PM