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View Diary: More opinions on blocking Burris (315 comments)

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  •  What's entailed in "judging" a return, though? (1+ / 0-)
    Recommended by:
    peraspera

    This is not my area.  I'm not up on the case law, scant as it appears to be.  But I'm assuming for there to be an investigation into and judgment of the returns, there must be at least some evidence of impropriety, as you suggest.  I don't know that you get there by having others simply turn down the offer (i.e., that doesn't seem sufficient to justify any inference of impropriety).  

    I guess part of what I am getting at is that there's probably an argument to be made that the "judging" needs to have some sort of standard here; that the return cannot simply be rejected because of this purported "appearance" of improrpiety.  If the proper procedures were followed, even if it appears massively corrupt, I don't see how the senate goes about rejecting him.  

    Personally, I think that seat is poison.  Just a little more concerned with the legal and constitutional question.

    What has been is what will be, and what has been done is what will be done, and there is nothing new under the sun.

    by Alec82 on Thu Jan 01, 2009 at 06:25:39 PM PST

    [ Parent ]

    •  It's up to the Senate (2+ / 0-)
      Recommended by:
      caps lock on, Jed L

      This processing of judging is committed to its sole discretion under Article I, Section 5, and they can use whatever process and criteria they believe their constituents will let them get away with, much like impeachment.

      •  Sole discretion? (3+ / 0-)

        Well we know that they cannot impose new qualifications.  So there's a limit there.  The argument you are making would suggest that they could pretty much exclude any appointed replacement....am I reading you right? You're talking unreviewable discretion.  Also, that seems to make little sense looking at the structure of the senate, as with one exception "whatever....their constituents will let them get away with" would not involve the residents of the rejected senator.

        What has been is what will be, and what has been done is what will be done, and there is nothing new under the sun.

        by Alec82 on Thu Jan 01, 2009 at 06:30:56 PM PST

        [ Parent ]

        •  Well, each state has two Senators (1+ / 0-)
          Recommended by:
          Jed L

          So, at least they get a half-vote.

          Yes, I do think the Senate could reject anyone under this clause.  They don't because of mutually reinforcing self-interest.

          •  Well I'm up for testing that theory (0+ / 0-)

            That seems....unlikely.  

            Is Powell the case that involved the coin toss example?

            What has been is what will be, and what has been done is what will be done, and there is nothing new under the sun.

            by Alec82 on Thu Jan 01, 2009 at 06:34:12 PM PST

            [ Parent ]

          •  That plainly goes against the language in Powell. (1+ / 0-)
            Recommended by:
            davidincleveland

            so you are saying Powell was incorrect?

            And I can't find it, but it was something to the effect that the Senate can not exclude when qualification have been met.  I know this is a new theory, but again, it is essentially an end run around Powell and render it useless.

            Is this what you are implying?

            Need Support Barack? Give Joe Lieberman and Rick Warren a call. Maybe they can help you.

            by justmy2 on Thu Jan 01, 2009 at 06:42:24 PM PST

            [ Parent ]

            •  Powell concerned "Qualifications". (1+ / 0-)
              Recommended by:
              Jed L

              As Amar suggests, this regards the "Returns" part of the clause.

              There was no question in Powell that the Congressman won the election and that he was constitutionally qualified.

              •  Impact of 17th amendment? (3+ / 0-)
                Recommended by:
                FLS, justmy2, davidincleveland

                Neither of the examples he cites, as he explains, involved the 17th amendment, which provides:

                When vacancies happen in the representation of any State in the Senate, the executive authority of each State shall issue writs of election to fill such vacancies: Provided That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.

                So your position is that this has no impact on the ability of the senate to judge the returns?

                What has been is what will be, and what has been done is what will be done, and there is nothing new under the sun.

                by Alec82 on Thu Jan 01, 2009 at 06:49:07 PM PST

                [ Parent ]

                •  A "Return" is that appointment. (1+ / 0-)
                  Recommended by:
                  Jed L

                  And the alternative is that the Senate has no capacity to reject an appointment secured via bribery, blackmail and the like.

                  •  Yes, I get that (2+ / 0-)
                    Recommended by:
                    justmy2, Justanothernyer

                    I'm just asking if that is your position? In other words, you're arguing that there's no impact?

                    It seems no less controversial, imo, to argue that the proper recourse is not the senate, and that the senate must seat anyone properly appointed pursuant to the 17th.  After all, the people have an opportunity to weigh in come the next election.  Your position, that the senate has absolute discretion to judge the propriety of elections and returns, seems a bit more problematic to me.

                    What has been is what will be, and what has been done is what will be done, and there is nothing new under the sun.

                    by Alec82 on Thu Jan 01, 2009 at 06:57:27 PM PST

                    [ Parent ]

                    •  Well, they do. (1+ / 0-)
                      Recommended by:
                      Jed L

                      Back in 1997, they spent until October figuring out if there was fraud in a Louisiana runoff election that Mary Landrieu won by 6000 votes.  

                      •  Really? They do? (0+ / 0-)

                        This has been decided already?

                        What has been is what will be, and what has been done is what will be done, and there is nothing new under the sun.

                        by Alec82 on Thu Jan 01, 2009 at 07:01:56 PM PST

                        [ Parent ]

                        •  There's a long history of this. (0+ / 0-)

                          Ever hear of Indiana's "Bloody Eighth"?  The 1974 Durkin-Wyman contest?  

                          The Senate could if it wanted to, conduct its own recount of the Franken-Coleman race.

                          •  I'm just curious.... (0+ / 0-)

                            ....since there's a process for the appointment provided for in the 17th amendment, why you believe that has no impact on their ability to judge the return.  

                            As I read your position, we could have a situation develop whereby the senate refused to seat an entire state, without review by the Supreme Court.  Do I understand your position correctly?

                            What has been is what will be, and what has been done is what will be done, and there is nothing new under the sun.

                            by Alec82 on Thu Jan 01, 2009 at 07:15:58 PM PST

                            [ Parent ]

                          •  Yes. (0+ / 0-)

                            And I believe the political process and mutual self-interest would prevent this power from being used blithely.

                          •  so you are saying, if I am correct... (1+ / 0-)
                            Recommended by:
                            Alec82

                            the Senate is the final arbiter...

                            and if a governor bribed the 99 other Senators to accept the appointment, the Judiciary has no jurisdiction to interpret the legality?

                            Interesting....I just wish the Legislature had all of these powers the last 8 years...

                            while we are at it, can we get rid of Corny, Graham, Chambliss, Shelby, Corker, and McConnell.  

                            Need Support Barack? Give Joe Lieberman and Rick Warren a call. Maybe they can help you.

                            by justmy2 on Thu Jan 01, 2009 at 07:20:18 PM PST

                            [ Parent ]

                          •  Well, there's laws against that, right? NT (0+ / 0-)
                          •  you just said the Senate is the final arbiter? (0+ / 0-)

                            they make the decisions right...the political process would take care of it...

                            Either the Senates prerogative is absolute or not...you can't be half pregnant....

                            what stops them from abusing their power...and let's say it is a quid pro quo less than bribery that is less easily discovered, but still unethical to eliminate strawmen...

                            Need Support Barack? Give Joe Lieberman and Rick Warren a call. Maybe they can help you.

                            by justmy2 on Thu Jan 01, 2009 at 07:42:28 PM PST

                            [ Parent ]

                          •  Grumble grumble (1+ / 0-)
                            Recommended by:
                            justmy2

                            Don't make me do Speech or Debate Clause research again.

                          •  LOL!!! (0+ / 0-)

                            Need Support Barack? Give Joe Lieberman and Rick Warren a call. Maybe they can help you.

                            by justmy2 on Thu Jan 01, 2009 at 08:14:42 PM PST

                            [ Parent ]

              •  Sounds like the equal protection clause to me (1+ / 0-)
                Recommended by:
                Alec82

                where do I recall that being interpreted to fit the case...

                hmmm....

                Need Support Barack? Give Joe Lieberman and Rick Warren a call. Maybe they can help you.

                by justmy2 on Thu Jan 01, 2009 at 07:21:29 PM PST

                [ Parent ]

                •  But but but.... (1+ / 0-)
                  Recommended by:
                  justmy2

                  ...it was a federal election! Easy case! Ridiculous I tell you!

                  To paraphrase Justice Kennedy.

                  What has been is what will be, and what has been done is what will be done, and there is nothing new under the sun.

                  by Alec82 on Thu Jan 01, 2009 at 07:31:03 PM PST

                  [ Parent ]

        •  to clarify (3+ / 0-)
          Recommended by:
          peraspera, caps lock on, Jed L

          "Qualifications" involves specific criteria (Powell), but "Elections" and "Returns" are discretionary.

          •  The problem with this 'judging' tactic... (1+ / 0-)
            Recommended by:
            chaboard

            ...is that, once you set up the precedent, what's to stop a future Republican-led senate (assuming that ever happens again) from denying any Democratic governor's appointment along the same lines, however spuriously?

            Is this really a door we want cracked open?

            Fool me once, I'll punch you in the fucking head.

            by HollywoodOz on Fri Jan 02, 2009 at 12:26:29 AM PST

            [ Parent ]

      •  So if the Repubs were in the majority in the (1+ / 0-)
        Recommended by:
        chaboard

        Senate, they could, in theory, block any appointment a Dem governor made until he appointed a Repub (or vice-versa)?  That's absurd.

        Or, could the Senate members block an appointment based on the appointee's race, religion, gender, sexual orientation?

        Let's go even further.
        I see nothing in Article 1, Section 5 that distinguishes between the treatment of those elected or "returned".  So, under your theory, if a state elected, say, a gay person to the Senate by a vote of 100% to 0%, homophobes in the Senate could band together and block the winner's seating?

        Let's even take it out of the realm of "protected classes".  Could the Senate members decide to block all redheads?  Could they decide to block all southpaws?  Could they decide to block all intellectuals?  All short people?  All farmers?  

        You would support the Senate's "right" to do such things?  And the only thing to deter them would be the disapproval of their constituents, who might very well go along with the particular bigotry used to block a winner/appointee?  Wow.

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