December 31, 2008

When bad vacancies happen to good people

Nate Silver has been following the constitutional tête-à-tête between IL Gov. Milorad Blagojevich and NV Sen. Harry Reid over the attempts by the Gov. to fill Barack Obama's vacant U.S. Senate seat.

As Silver sees it, Reid appears to be relying on an expansive definition of "Elections" as it appears in art. I, § 5, cl. 1 of the Constitution. Maybe so, but the 17th Amendment* is more particular when it comes to vacancies, which are to be filled by the "executive authority of such State" as empowered by that State's legislature.

I think if Reid wants to undermine Blagojevich's abilities to make an appointment he needs to concoct an argument that involves the idea that some combination of criminal charges/impending indictment and the Illinois legislature's overtures toward impeachment have diminished the governor's authority to such an extent that renders it insufficient for the requirements of the 17th Amendment.

Because I can't see him having much success grounding his objections on the qualifications of Blagojevich's pick, Roland Burris, based in Blagojevich's various travails. That argument is fallacious.

And, after all, crazy Jim Inhofe is qualified to be a Senator, and even Reid himself is apparently qualified to lead the whole shootin' match.

* Which made the Constitution slightly less undemocratic.

eta: Sure enough, the governor's continuing undiminished "power and authority" is at the heart of Roland Burris's complaint for mandamus* (.pdf; 10 pgs.) to the Illinois Supreme Court (see paragraph 18).

Evidently Burris has altered his position since a couple of weeks ago, when he described Blagojevich as "incapacitated" (that argument got exactly nowhere with the State's high court, incidentally).

* Burris is petitioning the court to literally command his appointment, like they do in monarchies and other authoritarian regimes.


Anonymous said...

Congress has final say over their members. If the Senate does not want to seat someone they do not have to and the courts have upheld that power. There was a case in Milwaukee where Congress refused to seat an elected Socialist Congressman.

William Tyroler said...

John's position may well prevail, but I'm not certain it's as simple as he suggests. To be sure, there's scholarly support for John's position ("It is enough for the Senate to reject Blagojevich's appointee if a majority of senators are firmly convinced that Blagojevich is corrupt and that any nomination he might make is inherently tainted by such corruption...."). But, Con Law expert Brian Kalt posits an opposing view -- one that, in my opinion (unburdened as it is by any relevant research), seems more compelling. Kalt, in any event, tosses in this trenchant observation:

I find it ironic that Reid, a Mormon, is hearkening back to the pre-Powell notion of excluding people from Congress through guilt by association. Back in the day, that illegal approach was used to keep Mormons out of Congress for being Mormons.

Interesting. Obama supporters would, I'd think, be sensitive to such a charge, albeit for a different reason. In any event, Nate Silver astutely notes that the Reid isn't really trying to fill the seat but, rather, to keep the Dems at arms' length from Blago. (Yes, we can keep Blago away!) Good luck with that.

illusory tenant said...

Congress has final say over their members. If the Senate does not want to seat someone they do not have to and the courts have upheld that power.

I'm not aware the courts have upheld such carte blanche power. They certainly didn't in Powell v. McCormack.

But it seems to me the Senators are contemplating barring Burris based on their impressions of the appointer, not the appointee.

Maybe that goes to judging "Returns," as these guys are arguing.

I think they're on firmer ground if they seat him, and then expel him, if they can muster the votes.

As for Victor Berger, wasn't he convicted of treason or something at the time?

The only thing Burris has done is erected a bizarre funerary monument to himself.

illusory tenant said...

Counselor! Long time no see, and welcome back.

William Tyroler said...


I yield to no one in admiration of your considerable skillz. If I haven't weighed in (blame it on the Guinness Stout: in quantities either too little or too much to convince me I have something worthwhile to contribute), it's not that I don't at least check in to see what you have, um, on tap.

Anonymous said...

Berger was only charged and convicted after he was first elected, and rejected. He did win a special from a jail cell.