Oy Vey: Michael Steele Says Obama Should Have Had Healthcare Summit Last Year. He Did!

Apparently, Dissenting Justice has a soft spot for underdogs. While other Democrats rushed to condemn Sarah Palin (even before she imploded on the national stage), I argued that they should treat her seriously and hear what she had to say. When Michael Steele was chosen to head the RNC, I also parted from liberals who raced to skewer him. After President Obama and the New York Times went after New York Governor David Paterson, I supported him (until the latest news emerged about possible undue influence in an assault case). I even pleaded with liberals to extend due process to Illinois Governor Rob Blagojevich, who absolutely deserved the benefit of a rational process like any other accused individual. And I argued, rightfully, that in the absence of a showing of improper conduct, Roland Burriss deserved his Senate seat.

Supporting the underdogs, however, comes with risks. Palin turned out to be an intellectual lightweight. Burriss might have actually purchased his Senate seat. Paterson might have used the weight of his name to convince a complainant to withdraw charges against an aide.

Meanwhile, Michael Steele has certainly failed to bring a sophisticated voice to the RNC. Instead, he has provided much comic relief. In the latest round, Steele argues that President Obama should have held a healthcare summit last year. Great -- but there is a major problem with this argument: President Obama held a healthcare summit last year! Caught in the embarrassing moment, Steele says that last year's summit "didn't count." Interesting.

This is not the first time that Steele has been caught in the headlights. Last August, for example, Steele stuttered while trying to defend his blatantly contradictory positions supporting Medicare and demonizing public-sponsored health plans as "socialized medicine."

Nevertheless, I will continue supporting underdogs -- when it is the right thing to do!

Here is video footage of Steele on the healthcare summit.

Now, He's Tainted: Senator Burris Says He Tried to Raise Cash for Blagojevich

Senator Roland Burris has admitted that he tried to raise money for former Illinois Governor Rod Blagojevich prior to receiving the Senate appointment, but after Obama's election victory. Previously, I argued that the Senate lacked the capacity to block him from taking the seat, based on the publicly available evidence. I stand by that conclusion. But this situation certainly smells bad.

The Senate could choose to expel him, but presumably explusions must relate to post-appointment behavior. Whether or not he committed perjury depends upon the specific content of the questions the Blagojevich impeachment committee asked him and the sworn statements he provided. But, if things continue they way they have so far, I suspect he will step down.

Is this scripted? If so, there is one wicked writer in the universe. This is exactly why defense lawyers ask clients to tell them "everything" they know about the situation prior to trial. Tune in for more drama.

Update: Keeping Things in Perspective
A really bright friend agreed with me that Burris is in trouble, but he also reminded me of my and his previous positions on the matter of campaign contributions and other assistance in exchange for appointments and other political favors. Substantively, it is difficult to distinguish what Burris has done (assuming he only tried to help get campaign donations for Blagojevich) from what politicians legally do everyday.

For example, New York Governor David Paterson will probably get campaign assistance from Kirsten Gillibrand, whom he chose to replace Senator Hillary Clinton. Many commentators have openly argued that Paterson should have picked Caroline Kennedy for the position precisely because she could use her deep political and financial contacts to help advance his own career. And despite the absolutely nasty competition between Obama and Clinton, she is his top Cabinet member. Clinton campaigned for Obama and headlined fundraisers on his behalf (as did former President Clinton) prior to his election victory. Her efforts helped to make sure that the Democratic Party remained unified. In exchange for her "contribution" to Obama, she received a high-level position. Does anyone really believe Clinton would be Secretary of State had she not campaigned on behalf of and helped raise money for Obama?

Burris Plays Musical Chairs With Senate, Gets Seat

Roland Burris is in the Senate. Democrats have accepted his "new" credentials -- which look remarkably like his "old" credentials -- and now welcome him to the Senate. After days of flouting the constitution and making the politically dangerous claim that unproven allegations of misconduct "taint" and invalidate decisions of the accused, Reid and Obama have caved in and will allow Burris to take his seat in the Senate.

Perhaps the only political casualty in this situation is Bill Richardson. Although I have not seen many commentators link Richardson and Burris, the Democrats' hard line against "taint" made it impossible for them to defend Bill Richardson, who faces a grand jury investigation surrounding a possible "pay to play" political deal -- just like Blagojevich. The same day that Richardson announced his withdrawal from consideration for Secretary of Commerce, Reid and Obama dramatically changed course on Burris.

Related Readings on Dissenting Justice:

What a Difference a Day Makes: Obama and Reid On Board With Burris Appointment

Feinstein Smacks Down Reid and Fellow Democrats Regarding Burris

Joe Lieberman and Rick Warren In, Roland Burris Out: No "Place at the Table" for Senior, Loyal Democrat

On Day That Bill Richardson Announces Withdrawal Harry Reid Softens Rhetoric on Burris

Will Bill Richardson's Case Lead to a Softening of the Rhetoric of "Taint"?

Patrick Buchanan Shows Greater Commitment to Liberal Values Than Senate Democrats, Defends Roland Burris

So When Exactly Does "Change" Arrive? Senate Battle Over Burris and Blagojevich Offers "More of the Same"!

Do Nepotism, Wealth and Dynastic Power "Taint" Kennedy's Likely Senate Appointment? Taking Reid's Arguments Where He Wouldn't Want Them to Go

Some Media Outlets Begin "Palinizing" Roland Burris

On Day That Bill Richardson Announces Withdrawal Harry Reid Softens Rhetoric on Burris

Defiant Blagojevich Names Obama's Successor: Decision Raises Political and Constitutional Questions

What a Difference a Day Makes: Obama and Reid On Board With Burris Appointment

As I expected, the Democrats are backing down from their unnecessarily rigid position with respect to Roland Burris. The political trouble surrounding Bill Richardson served as a wake-up call to Democrats, who seemed to forget that taking a zero-tolerance attitude toward unproven allegations of ethical or legal violations does not promote the party's interests -- even if it helped Obama and Reid prevent Blagojevich from appointing someone other than their preferred candidate to the Senate. [Editor's Note: The widespread opposition among constitutional law scholars to their plan to reject any candidate Blagojevich appointed probably factored into the decision as well. Or perhaps that is just wishful thinking on my part.]

So, on the same day that Richardson dropped out of the Cabinet process, Reid began to soften his rhetoric on Burris. And yesterday, the signs became even warmer after Senator Diane Feinstein publicly blasted Democrats for failing to sit Burris. Feinstein, who is an outgoing member of the credentials committee, has a powerful voice on the subject of receiving members to the Senate. At that point, the writing was on the wall.

Today, Reid sounds like the careful and flexible seeker of "equal justice" that he was during the Clinton impeachment. After meeting with Burris this morning, Reid made the following statement:

Roland Burris, to me, appears to be candid and forthright. Without any hesitation, he prepared an affidavit that the impeachment committee for the Illinois state assembly already has, and he's going to go answer any other questions they might have.

"He's not trying to avoid any responsibility and trying to hide anything . . . .

Reid also suggested that the issue of seating Burris depends only upon the signing of his commission by the rebellious Illinois Secretary of State Jesse White, who has claimed discretion to veto Governor Blagojevich by refusing to perform a ministerial act required by law. And while many sources believed that the Senate would try to drag out this matter until Blagojevich was removed from office (or convicted), Reid has indicated that he wants a quick resolution of the issue:

There's going to come a time when the entire Senate is going to have to act on this . . . .And that day, I hope, would come sooner rather than later.

Obama Tones Down His Rhetoric as Well
Senator Obama has also moderated his stance on Burris. Obama, who had previously called for Blagojevich to resign and who disagreed with the seating of any appointment he made, has struck a conciliatory tone:

[I] know Roland Burris. Obviously, I've -- he's from my home state. I think he's a fine public servant. If he gets seated, then I'm going to work with Roland Burris, just like I work with all the other senators, to make sure that the people of Illinois and the people of the country are served.

My take: Once the Democrats realized that their hard line against Blagojevich and their broad and amorphous taint argument could imperil other Democrats (like Richardson), they had to retreat. But they could not retreat by softening their opposition to Blagojevich; otherwise, he would look victorious.

Their only way out of this mess was through Burris. If they could legitimize his appointment -- rather than portraying it as tainted -- then they could come away looking as if they made a righteous decision. This is precisely why Obama, Reid, and other Democrats now glowingly describe Burris as ethical and honest. They are trying to distinguish him from Blagojevich and create a narrative which portrays their dramatic retreat (or loss) on the issue as the acceptance of a fine candidate after an investigation of his background and his appointment, rather than capitulation to a corrupt and unpopular governor.

The only question that remains: Will a top Democrat now call Jesse White and tell him to end his silly protest or will Democrats force the Illinois Supreme Court to decide this bothersome matter?

Update: Huffington Post reports that Obama gave the marching orders to seat Burris. This confirms my initial belief that he also gave the initial order NOT to seat Burris. Obama offered statements condemning Blagojevich after the arrest and insisting that he should step down and refrain from filling the Senate seat. He also condemned the appointment of Burris. Today, he offered praise for Burris. This conduct is odd for someone who has no stake in the outcome. Also, recall Obama's role in getting the Democrats to reconcile with Lieberman, although many of them wanted to oust him from seniority on certain committees. The Senate-Obama honeymoon remains in full effect. But one has to wonder whether any damage was done, especially with Reid, who comes out of this situation looking pretty weak.

Update Number 2: In my original post, I speculated that the Senate would attempt to clean up this mess by explaining their objection to Burris as a desire to "investigate" his background and appointment and avoid looking as if they loss to Blagojevich. Well, it did not take too long to confirm this, via statements from Senators Durbin and Reid:

[Durbin:]I think it was important that the United States Senate say — and we did, as a Democratic caucus unanimously — that we were going to carefully scrutinize and review the process by which this Senate seat would be filled if Governor Blagojevich was involved, and that's what happened.

[Reid:]People ask a lot of times why we have to do various things procedurally here in the Senate. It's because we're the Senate; that's how we operate.

Ok. So your objection to "anyone" that Blagojevich appointed was merely a procedural concern that you could wrap up in less than one week? Why didn't you say that in the first place?

Related Readings on Dissenting Justice:

A Harry Reid Flip-Flop? Comparing His Views on Bill Clinton and Rod Blagojevich

Feinstein Smacks Down Reid and Fellow Democrats Regarding Burris

Joe Lieberman and Rick Warren In, Roland Burris Out: No "Place at the Table" for Senior, Loyal Democrat

On Day That Bill Richardson Announces Withdrawal Harry Reid Softens Rhetoric on Burris

Will Bill Richardson's Case Lead to a Softening of the Rhetoric of "Taint"?

Patrick Buchanan Shows Greater Commitment to Liberal Values Than Senate Democrats, Defends Roland Burris

So When Exactly Does "Change" Arrive? Senate Battle Over Burris and Blagojevich Offers "More of the Same"!

Do Nepotism, Wealth and Dynastic Power "Taint" Kennedy's Likely Senate Appointment? Taking Reid's Arguments Where He Wouldn't Want Them to Go

Some Media Outlets Begin "Palinizing" Roland Burris

On Day That Bill Richardson Announces Withdrawal Harry Reid Softens Rhetoric on Burris

Defiant Blagojevich Names Obama's Successor: Decision Raises Political and Constitutional Questions

Like It or Not, Democracy Prevails: Illinois Supreme Court Refuses to Declare Blagojevich Unfit to Serve

Blago Impeachment: What Would Lincoln Do?

Playing or Paying Politics: Blagojevich, Political DealMaking, and the Difficulty of Drawing Lines

A Harry Reid Flip-Flop? Comparing His Views on Bill Clinton and Rod Blagojevich

With all of the discourse about "taint" and governance flying around, I decided to take a trip down memory lane and examine the political drama during the failed Republican effort to remove Bill Clinton from office.

Democrats Are to Blagojevich as Republicans Were to Bill Clinton
Ironically, many Democrats are making arguments today with respect to Blagojevich that they rejected during the Clinton impeachment proceedings. Republicans demanded that Clinton resign, and Special Prosecutor Ken Starr leaked information to the media in an effort to shame him out of office.

While Republicans claimed that the controversy surrounding Clinton made it impossible for him to govern effectively, Democrats argued that the partisan impeachment disrupted the country instead and that Clinton should remain in office. Today, however, many Democrats -- particularly Senate Democrats who oppose the seating of Roland Burris -- believe Blagojevich should resign; their arguments mirror the assertions of Republicans who pressured Clinton to leave office.

Harry Reid: Flip-Flopper?
Because Harry Reid is a central voice in the present controversy, I focus on his comments alone. Reid voted against removing Clinton from office. Contrary to his rigid (at least until recently) position on Burris and Blagojevich, Reid urges flexibility and compassion for Clinton because everyone is flawed:

Great dreams are dreamed by people with human flaws. Great policies and actions are sometimes set in motion by those with broken souls. Great deeds are not always done by good men. Recent history gives us many examples. . . . Each of us, each one of us in this Chamber, every human being, is flawed. Each of us needs all the forgiveness and forbearing we can be granted by the charity of others.

Reid did not believe that the allegations against Clinton, even if true, warranted removal from office, even though he said that Clinton violated the "public trust."

Reid also criticized Starr for trying to force Clinton out of office. After comparing Starr with McCarthy, Reid reflected on his own career as a trial lawyer as a way of advocating the need for fairness:

I tried criminal cases, lots of them . . . .I know something about the impact that a criminal charge has on any man or woman, about how they agonize over telling their children, how they struggle to face the community.

Every American is entitled to equal justice, no matter their rank in society; equal justice but not equally unfair justice. . . .

A fairminded prosecutor would not have leaked salacious details to the press in an effort to force the target to resign from office.

Skip forward to the present, and Reid takes a very different tone. He does not point out the inherent flaws of humanity. He also does not urge flexibility. Instead, he argues inflexibly that no one appointed by Blagojevich can escape "taint," and he uses the controversy surrounding the governor to pressure him out of office. Reid's response to the appointment of Burris illustrates the contrast between his differing approaches:

[Rejecting Blagojevich's appointments] is not about Mr. Burris; it is about the integrity of a governor accused of attempting to sell this United States Senate seat. Under these circumstances, anyone appointed by Gov. Blagojevich cannot be an effective representative of the people of Illinois and, as we have said, will not be seated by the Democratic Caucus. . . .

We again urge Gov. Blagojevich to not make this appointment. It is unfair to Mr. Burris, it is unfair to the people of Illinois and it will ultimately not stand. The governor must put the interests of the people of Illinois and all Americans first by stepping aside now and letting his successor appoint someone who we will seat.

But Reid began demanding that Blagojevich resign immediately after he was arrested. The entire Democratic Senate Caucus signed Reid's letter to Blagojevich, which states that:

The arrest of and complaint against Gov. Blagojevich raises serious concerns about his ability to effectively represent the people of Illinois. The conduct alleged represents a disgraceful abuse of the public trust. In the interest of the people of Illinois and all Americans, he should resign immediately. If he does not, I hope the Illinois legislature will take action.

By contrast, during the Clinton impeachment effort, Reid urged flexibility, forgiveness and equal justice. Reid, however, has basically found Blagojevich guilty in advance of any factfinding. During an interview on Meet the Press, for example, Reid said that "Blagojevich obviously is a corrupt individual. I think that's pretty clear."

This does not sound like "equal justice." Instead, it sounds like "Kangaroo Justice." Do Democrats remember that Clinton continued to serve, spend governmental money, order military strikes, sign legislation and perform his presidential duties after he was charged by the House impeachment committee and even during his trial in the Senate? Here's a better question: Do Democrats realize that their positions have shifted dramatically?


Related Readings on Dissenting Justice:

Feinstein Smacks Down Reid and Fellow Democrats Regarding Burris

Joe Lieberman and Rick Warren In, Roland Burris Out: No "Place at the Table" for Senior, Loyal Democrat

On Day That Bill Richardson Announces Withdrawal Harry Reid Softens Rhetoric on Burris

Will Bill Richardson's Case Lead to a Softening of the Rhetoric of "Taint"?

Patrick Buchanan Shows Greater Commitment to Liberal Values Than Senate Democrats, Defends Roland Burris

So When Exactly Does "Change" Arrive? Senate Battle Over Burris and Blagojevich Offers "More of the Same"!

Do Nepotism, Wealth and Dynastic Power "Taint" Kennedy's Likely Senate Appointment? Taking Reid's Arguments Where He Wouldn't Want Them to Go

Some Media Outlets Begin "Palinizing" Roland Burris

On Day That Bill Richardson Announces Withdrawal Harry Reid Softens Rhetoric on Burris

Defiant Blagojevich Names Obama's Successor: Decision Raises Political and Constitutional Questions

Like It or Not, Democracy Prevails: Illinois Supreme Court Refuses to Declare Blagojevich Unfit to Serve

Blago Impeachment: What Would Lincoln Do?

Playing or Paying Politics: Blagojevich, Political DealMaking, and the Difficulty of Drawing Lines

Pick Me! Caroline Kennedy Officially on the Job Market

Roland Burris Untainted: Affidavit Portrays Limited Contacts With Blagojevich

In an effort to prove that he is untainted, Roland Burris submitted an affidavit to the Illinois House impeachment panel that describes his contacts with Governor Rod Blagojevich concerning his controversial Senate appointment. In the affidavit, Burris attests that a lawyer for Blagojevich contacted him on December 26th and scheduled a meeting with him for the same day.

During the meeting Blagojevich's lawyer asked Burris whether he would consider accepting the vacant Senate position if asked. Burris requested two days to think about the matter. Two days later, he expressed his interest in accepting an offer to the lawyer. Blagojevich later made a formal offer, which Burris accepted.

Barbara Flynn Currie, Chair of the Impeachment panel, seems very receptive to Burris's description of his contacts with Blagojevich. According to a St. Louis Post-Dispatch article:

Impeachment committee chairwoman Barbara Flynn Currie said today she takes
Burris "at his word" about the sequence of events with his appointment. "Here's
a governor who was arrested weeks ago . . . One of the charges is that he
attempted to get a 'quid' in exchange for this 'quo,'" Currie noted. "Does
anyone in their right mind think he was going to attempt to do that now?"

The article also contains a link to the affidavit: Burris affidavit.

Related Readings on Dissenting Justice:

A Harry Reid Flip-Flop? Comparing His Views on Bill Clinton and Rod Blagojevich

Feinstein Smacks Down Reid and Fellow Democrats Regarding Burris

Joe Lieberman and Rick Warren In, Roland Burris Out: No "Place at the Table" for Senior, Loyal Democrat

On Day That Bill Richardson Announces Withdrawal Harry Reid Softens Rhetoric on Burris

Will Bill Richardson's Case Lead to a Softening of the Rhetoric of "Taint"?

Patrick Buchanan Shows Greater Commitment to Liberal Values Than Senate Democrats, Defends Roland Burris

So When Exactly Does "Change" Arrive? Senate Battle Over Burris and Blagojevich Offers "More of the Same"!

Do Nepotism, Wealth and Dynastic Power "Taint" Kennedy's Likely Senate Appointment? Taking Reid's Arguments Where He Wouldn't Want Them to Go

Some Media Outlets Begin "Palinizing" Roland Burris

On Day That Bill Richardson Announces Withdrawal Harry Reid Softens Rhetoric on Burris

Defiant Blagojevich Names Obama's Successor: Decision Raises Political and Constitutional Questions

Like It or Not, Democracy Prevails: Illinois Supreme Court Refuses to Declare Blagojevich Unfit to Serve

Blago Impeachment: What Would Lincoln Do?

Playing or Paying Politics: Blagojevich, Political DealMaking, and the Difficulty of Drawing Lines

Pick Me! Caroline Kennedy Officially on the Job Market

Feinstein Smacks Down Reid and Fellow Democrats Regarding Burris

It's great to hear someone with power unequivocally criticize fellow Democrats on their idiotic position regarding Roland Burris. Diane Feinstein, a senior Senator from California, went against her party and its reliance upon the flimsiest reasons for not welcoming Burris into the Senate -- that Jesse White, the Illinois Secretary of State unlawfully refuses to sign the commission.

Please visit Politico.Com for the full story. Here's a snippet:

I can’t imagine the secretary of state countermanding a gubernatorial
appointment . . . .The question, really, is one in my view of law. And that is,
does the governor have the power to make the appointment? And the answer is yes.
Is the governor discredited? And the answer is yes.

Does that affect his appointment power? And the answer is no until certain
things happen . . . .[Excluding Burris] affects gubernatorial appointments all
over the country.

Feinstein also complimented Burris and criticized the Democrats for failing to resolve the conflict sooner: “[H]e’s not some kid who has no background. I would be hopeful that this thing is going to be settled.”


Related Readings on Dissenting Justice:

A Harry Reid Flip-Flop? Comparing His Views on Bill Clinton and Rod Blagojevich

Joe Lieberman and Rick Warren In, Roland Burris Out: No "Place at the Table" for Senior, Loyal Democrat

On Day That Bill Richardson Announces Withdrawal Harry Reid Softens Rhetoric on Burris

Will Bill Richardson's Case Lead to a Softening of the Rhetoric of "Taint"?

Patrick Buchanan Shows Greater Commitment to Liberal Values Than Senate Democrats, Defends Roland Burris

So When Exactly Does "Change" Arrive? Senate Battle Over Burris and Blagojevich Offers "More of the Same"!

Do Nepotism, Wealth and Dynastic Power "Taint" Kennedy's Likely Senate Appointment? Taking Reid's Arguments Where He Wouldn't Want Them to Go

Some Media Outlets Begin "Palinizing" Roland Burris

On Day That Bill Richardson Announces Withdrawal Harry Reid Softens Rhetoric on Burris

Defiant Blagojevich Names Obama's Successor: Decision Raises Political and Constitutional Questions

Like It or Not, Democracy Prevails: Illinois Supreme Court Refuses to Declare Blagojevich Unfit to Serve

Blago Impeachment: What Would Lincoln Do?

Playing or Paying Politics: Blagojevich, Political DealMaking, and the Difficulty of Drawing Lines

Pick Me! Caroline Kennedy Officially on the Job Market

Joe Lieberman and Rick Warren In, Roland Burris Out: No "Place at the Table" for Senior, Loyal Democrat

The title really conveys how I feel right now. Women and GLBT people are told that we must learn how to stop being "disagreeable" and accept pedophilia/incest/polygamy = same-sex marriage man. The "liberal" wing gets to stomach Lieberman. But a lifetime Democrat, who has never made a speech endorsing "90%" of Bush and who has never equated the pro-choice movement with Nazi genocide is shut out of the Senate by Democrats willing to discard liberal principles, the Constitution, Illinois law, and common sense. What must happen before progressives really get upset? Is it just me or is this pattern completely outrageous? And is the silence by Democrats even worse? Perhaps, Democrats will allow Burris to take his seat at the table if he agrees to: make a speech for the next GOP presidential candidate; equate abortion with the Holocaust, and compare same-sex marriage with incest polygamy and child rape.

Linda Tripp, Kato Kaelin, and Jesse White: Illinois Secretary of State Should Savor Next Four Minutes

The year has only begun, but Illinois Secretary of State Jesse White will undoubtedly reach the finals in year-end reviews that rank the most desperate fame seekers of 2009. White has refused to "certify" Rod Blagojevich's appointment of Roland Burris to fill a Senate vacancy, citing the controversy surrounding the governor.

There is a major wrinkle in White's decision, however: The Constitution and Illinois law give the governor exclusive authority to fill the vacancy. In fact, state law mandates that the governor make the appointment: "When a vacancy shall occur in the office of United States Senator from this state, the Governor shall make temporary appointment to fill such vacancy . . . ."

Illinois law does not give White any independent authority to deny the appointment. White's own "spokesperson," David Druker, conceded that White's refusal would not affect the governor's ability to make the appointment and present it to the Senate.

Not only does Illinois law exclusively authorize the governor to fill Senate seats, it also mandates that the Secretary of State certify all commissions that state law compels the governor to issue. Because state law requires the governor to fill the Senate vacancy, which he has done, White must certify the appointment of Burris. Shamelessly, Harry Reid has used White's illegal refusal to certify the appointment (which some commentators doubt is even necessary) as a basis for excluding Burris from the Senate.

Despite the clarity of state and constitutional law on this matter, White has nevertheless staked out a microscopic place in history. Although White will not become as vaulted or infamous as Florida's Katherine Harris -- who probably ranks among the most known state elections officials in U.S. history, White has made somewhat of a name for himself recently, judging by the number of web pages on which his name has suddenly appeared.

But White will soon fade away like Linda Tripp (double-crossing friend of Monica Lewinsky), Kato Kaelin (houseguest to O.J Simpson) and all of the other movie extras who have made fleeting appearances in U.S. political thrillers. But White's run will not last as long as Tripp's or Kaelin's. By my count, he has about four minutes left. I hope he savors the moment.

[Editor's Note: Burris has sued seeking a writ of mandamus compelling White to, well, obey the law. You can read his motion here.]

Related Readings on Dissenting Justice:

On Day That Bill Richardson Announces Withdrawal Harry Reid Softens Rhetoric on Burris

Will Bill Richardson's Case Lead to a Softening of the Rhetoric of "Taint"?

Patrick Buchanan Shows Greater Commitment to Liberal Values Than Senate Democrats, Defends Roland Burris

So When Exactly Does "Change" Arrive? Senate Battle Over Burris and Blagojevich Offers "More of the Same"!

Do Nepotism, Wealth and Dynastic Power "Taint" Kennedy's Likely Senate Appointment? Taking Reid's Arguments Where He Wouldn't Want Them to Go

Some Media Outlets Begin "Palinizing" Roland Burris

On Day That Bill Richardson Announces Withdrawal Harry Reid Softens Rhetoric on Burris

Defiant Blagojevich Names Obama's Successor: Decision Raises Political and Constitutional Questions

Like It or Not, Democracy Prevails: Illinois Supreme Court Refuses to Declare Blagojevich Unfit to Serve

Blago Impeachment: What Would Lincoln Do?

Playing or Paying Politics: Blagojevich, Political DealMaking, and the Difficulty of Drawing Lines

Pick Me! Caroline Kennedy Officially on the Job Market

On Day That Bill Richardson Announces Withdrawal Harry Reid Softens Rhetoric on Burris

When Bill Richardson announced that he was withdrawing from consideration for a position as Secretary of Commerce, I predicted that this could actually help Blagojevich and Burris. Richardson was forced out because Obama would have had a difficult time defending him in confirmation hearings while a grand jury investigates whether he was involved in a "pay to play" scheme with a large donor. Democrats, including Obama, have taken a hard-line approach with Blagojevich, who also faces pay to play accusations, demanding that he resign and refusing to seat Burris, whom Blagojevich selected to fill a vacant Senate seat.

Now that Democrats see (or remember) the implications of rushing to condemn individuals before facts, they will probably retreat from such a strong line on these matters. Indeed, Reid had already softened his public stance on Burris during an interview on Meet the Press, and he now suggests that Burris might have a seat at the Senate table:

Senate Majority Leader Harry Reid opened the possibility Sunday that former Illinois Atty. Gen. Roland Burris might serve in the Senate despite the aggressive opposition of Democratic leaders to his appointment by a scandal-tarnished governor.

"I'm an old trial lawyer. There's always room to negotiate," said Reid, a Nevada Democrat, on NBC's "Meet the Press."

When pressed by host David Gregory on whether there was a possibility Burris might ultimately be seated, Reid responded, "That's right."

The fact that Reid's employed more flexible rhetoric on the same day that Richardson formally announced his withdrawal is probably not coincidental. Nonetheless, a Senate aide says that Reid's comments "were not meant as an overture but merely an attempt to leave open the possibility of a negotiated settlement, and said that leaders remained determined not to seat Burris."

Furthermore, Reid continues to claim the authority to exclude a lawfully appointed Senator:

Under the Constitution, Reid said, "we determine who sits in the Senate. And the House determines who sits in the House. "So there's clearly legal authority for us to do whatever we want to do. This goes back for generations."

Most constitutional law scholars who have addressed this issue, however, seem to disagree with Reid's approach. Despite his rhetoric to the contrary, the objections of constitutional law scholars possibly informs Reid's moderation as well.

Related Readings on Dissenting Justice:

Will Bill Richardson's Case Lead to a Softening of the Rhetoric of "Taint"?

Patrick Buchanan Shows Greater Commitment to Liberal Values Than Senate Democrats, Defends Roland Burris

So When Exactly Does "Change" Arrive? Senate Battle Over Burris and Blagojevich Offers "More of the Same"!

Do Nepotism, Wealth and Dynastic Power "Taint" Kennedy's Likely Senate Appointment? Taking Reid's Arguments Where He Wouldn't Want Them to Go

Some Media Outlets Begin "Palinizing" Roland Burris

On Day That Bill Richardson Announces Withdrawal Harry Reid Softens Rhetoric on Burris

Defiant Blagojevich Names Obama's Successor: Decision Raises Political and Constitutional Questions

Like It or Not, Democracy Prevails: Illinois Supreme Court Refuses to Declare Blagojevich Unfit to Serve

Blago Impeachment: What Would Lincoln Do?

Playing or Paying Politics: Blagojevich, Political DealMaking, and the Difficulty of Drawing Lines

Pick Me! Caroline Kennedy Officially on the Job Market

Do Nepotism, Wealth and Dynastic Power "Taint" Kennedy's Likely Senate Appointment? Taking Reid's Arguments Where He Wouldn't Want Them to Go

Just Call Me "Prophet"
Back on December 17, 2008, I made the following observation in response to Caroline Kennedy's freshly launched (and somewhat shameless) "campaign" to fill Hillary Clinton's Senate seat:

I think she will likely get it. Why would she go public unless she expected the job? Besides, Obama personally called Paterson and supported her candidacy -- pre-Blagojevich. If you are deeply cynical, you might even believe that she has made her desire public in order to appear "transparent" and avoid having her inevitable selection look like a backroom deal. But what do I know about deep cynicism?

Well, it appears that the likely already-done deal is now almost officially done. According to an Associated Press article republished on MSNBC.Com, Governor Paterson will likely choose Kennedy for the slot and will soon announce his decision.

Taint That A Shame?
Because the Democrats have now implemented a "zero-tolerance" policy that bans "taint" in the Senate, I wonder whether any of them will argue that Kennedy possibly (remember, a mere possibility of wrongdoing can "taint") got the position based on her family's wealth, political power and fame, which she leveraged to force Paterson's hand.

I am not arguing that this happened, but Senate Democrats have forcefully claimed the power to block any vacancy appointment that could appear "tainted" -- even in the absence of a finding of any specific wrongdoing by the appointed or the appointer. Reid's taint argument could therefore justify my "hypothetical" nepotism challenge to Kennedy's selection. But I guess this is why I am a law professor rather than a politician.

Food for Thought
How long will it take before some irreverent person makes this argument:

Senator Reid, you should not accept the appointment of a relatively inexperienced, but extremely powerful and wealthy white woman who hails from a political dynasty, while blocking the appointment of an experienced black male of modest economic beginnings who, absent your shenanigans, would become the nation's only black Senator.

Well, it seems that I just made the argument. Perhaps this angle could help kill this unnecessary diversion. And maybe Blagojevich knew this was coming and made a decision that would make this argument relevant.

PS: I know I said the Senate should drop this issue, but I am not a Senator, and (more importantly) I feel compelled to point out potential contradictions and hypocrisy among our leaders. Hard work - but someone must do it.


Related Readings on Dissenting Justice:

So When Exactly Does "Change" Arrive? Senate Battle Over Burris and Blagojevich Offers "More of the Same"!

Some Media Outlets Begin "Palinizing" Roland Burris

Defiant Blagojevich Names Obama's Successor: Decision Raises Political and Constitutional Questions

Like It or Not, Democracy Prevails: Illinois Supreme Court Refuses to Declare Blagojevich Unfit to Serve

Blago Impeachment: What Would Lincoln Do?

Playing or Paying Politics: Blagojevich, Political DealMaking, and the Difficulty of Drawing Lines

Pick Me! Caroline Kennedy Officially on the Job Market

So When Exactly Does "Change" Arrive? Senate Battle Over Burris and Blagojevich Offers "More of the Same"!

For over a year now, virtually every candidate for elected office has appropriated Obama's highly successful "change" mantra. But if you have taken just a few moments out your holiday festivities to read the latest political developments, Washington, DC will remain the same absent some catastrophic event.

What Happened to the Economy, Health Care, the Wars, and Civil Rights?
Despite all of the urgent problems the country needs to address, Senate Democrats apparently believe that their first major constitutional, political and media battle in 2009 should center around a two-year, filler Senate position. And as I write this essay, Republicans have just threatened to play the same game and block comedian Al Franken from representing Minnesota in the Senate -- despite his apparent 39-point victory over GOP incumbent Norm Coleman.

With such frivolity unfolding, our trustworthy media will undoubtedly flock like lemmings to Capitol Hill where they will remain planted and reporting every single development or rumored development in the messy drama. [Editor's Note: Despite the new Franken-Coleman developments, for the sake of space and my own sanity and free time, this essay focuses exclusively on the Blagojevich-Burris-Reid affair.]

Blagojevich Performing His Obligations As Governor
The 17th Amendment authorizes states to conduct Senate elections (Article I addresses the House) and to fill vacancies when they arise. In the event of a vacancy, the Constitution gives states the option of holding a special election or allowing a governor to choose the replacement. Illinois law allows the governor to fill Senate vacancies, and the current governor has done so, by naming Roland Burris to occupy Obama's vacated seat.

Not so fast, say Senate Democrats. Democrats refuse to allow Burris to occupy the seat because a federal prosecutor has filed a criminal complaint against Illinois Governor Rod Blagojevich, accusing him, in part, of conspiring to profit from public office by selling the vacated seat.

Many constitutional law scholars (myself included) believe that the weight of historical evidence, constitutional text, and Court doctrine deny the Senate the authority to veto Blagojevich at will. Nevertheless, Harry Reid, the Senate Majority Leader, says that the criminal charges place a "taint" over the selection process that renders any appointment by Blagojevich illegitimate, which in turn empowers the Senate to disregard Burris or any other candidate the governor had selected. I'm not buying this argument -- at all.

Legally, Governor Blagojevich's Position Remains Unaltered
Despite the filing of criminal charges against Blagojevich, his role as governor has not changed. Blagojevich has not been convicted or even indicted, and even if he had been, this alone would not effectuate his removal from office.

Also, the Illinois legislature declined to deprive Blagojevich of the power to fill the vacancy -- a move that, if successful, would have prevented the current conflict. Instead, the Attorney General asked the Illinois Supreme Court to declare Blagojevich incompetent to serve -- in other words, to conduct an undemocratic judicial impeachment of the governor. The court, however, refused to do so. Meanwhile, impeachment proceedings have progressed at a snail's pace.

To make matters worse, the prosecutor has announced that he needs an additional three months to prepare a case against the governor, but he has requested that the impeachment panel refrain from taking testimony from alleged candidates (or their agents) with whom Blagojevich allegedly tried to make a deal. Due process, however, requires that material witnesses participate in fact-finding proceedings so that the accused can confront them and factfinders can develop a reliable record.

If the Illinois impeachment panel progresses without testimony from material witnesses, then its conception of due process will rival that of the outgoing Bush administration. Nonetheless, the panel has now promised to deliver a "quickie" impeachment with results by as early as next week.

The impeachment panel's promise reduces to simple equation: Withholding necessary witnesses PLUS steamrolling the proceedings EQUALS a denial of procedural fairness. With liberals promising to conduct rapid, outcome-already-determined impeachment proceedings without testimony from material witnesses change has not arrived, certainly not in Illinois -- the cradle of change.

Reid's "Taint" Argument Is Tainted
Reid and his supporters argue that the Senate must exclude any candidate Blagojevich selects because the criminal complaint taints the selection process. But the "taint" argument does not hold up to scrutiny. First, "taint" is such a broad and amorphous concept that it could support a Senate veto under an infinite number of scenarios, which would effectively obliterate the 17th Amendment's framework, which authorizes states to fill Senate vacancies.

That taint argument also assumes wrongdoing by Blagojevich simply because a prosecutor accused him of committing a crime. Personally, we might "believe" that Blagojevich is guilty of a crime, but a criminal complaint is simply a set of allegations -- not facts.

The constitution that I teach mandates that prosecutors prove allegations against defendants -- not that defendants prove their innocence. In other words, our constitutional culture assumes the innocence of the accused. Court doctrine treats the presumption of innocence as an essential element of a system of justice and ordered liberty.

Senate Democrats, however, have discarded the presumption of innocence and are using the criminal complaint to disempower not only Blagojevich, but any candidate he selects for the position. But unless Burris bought the seat, the taint argument simply cannot apply.

Reid nonetheless insists that the Senate must reject any person that Blagojevich selects. This blanket assertion -- made without any factfinding whatsoever -- undermines Reid's credibility and worsens the due process deprivation by treating with suspicion every potential appointee, regardless of whether a legitimate basis for linking that person to impropriety exists. Because Reid's argument undermines basic constitutional principles that require procedural fairness, his threat to exclude Burris in order to prevent taint is itself tainted.

Business As Usual in Washington, DC
For those of you who feared that change would devastate Washington, be not afraid. If you still dream of a different tomorrow, you should probably temper your hope.

Most of the nation's political leaders promised "change" in 2009. The Burris (and now Franken-Coleman) controversy, however, indicates that Congress will cling (at least in the near future) to the familiar past and will engage in public grandstanding over relatively insignificant matters when they could instead use that energy to tackle the world's most pressing problems. If you remain unpersuaded, here are some facts to consider [Editor's Note: Beware of Sarcasm]:

* While Bush hunted fruitlessly for nonexistent weapons of mass destruction, Congress subpoenaed athletes and held days of hearings in order to rid professional sports of terroristic steroid use.

* In 2005, after the ultimately destructive housing bubble had already begun, Congress convened an emergency session on national security to reverse a decade of exhaustive Florida litigation that allowed Terry Schiavo to end her life with dignity.

* And in the 1990s, while millions of Americans suffered from a lack of health care, members of Congress made sure that no future president would ever consensually stain a blue dress "not his wife's" (thanks for the line, Cokie Roberts) without suffering severe consequences.

Today, foreclosures, unemployment and bankruptcies have reached record levels. The nation's armed forces continue to battle two costly and deadly wars (costly, deadly, and war -- redundant). Poor people lack essential resources such as health care, jobs, food, shelter and education. Violent crimes have surged as jobs vanish. Children remain "left behind." And deprivations of civil and human rights continue but often go unnoticed and unpunished.

Although these critical issues require immediate attention, our nation's "leaders" have decided to spend precious intellectual and political resources in order to defeat a two-year, probably one-"term," legally appointed replacement Senator. Weighing the costs and benefits, Senator Reid, the Senate's flawed priorities and procedural unfairness will probably harm society much more than living with Blagojevich's alleged taint.

PS: After analyzing the constitutional and political issues at stake in this situation (and writing about them on the blog), I began to wonder why this was even happening. This essay is the product of those thoughts.

Related Readings on Dissenting Justice:

Some Media Outlets Begin "Palinizing" Roland Burris

Defiant Blagojevich Names Obama's Successor: Decision Raises Political and Constitutional Questions

Like It or Not, Democracy Prevails: Illinois Supreme Court Refuses to Declare Blagojevich Unfit to Serve

Blago Impeachment: What Would Lincoln Do?

Some Media Outlets Begin "Palinizing" Roland Burris

It did not take long for the media to support Senate Democrats after Governor Blagojevich defied their demand that he refrain from naming a successor to replace Obama in the Senate. Most mainstream media accounts of Blagojevich have almost assumed his guilt before trial. Now, some media outlets have turned their attention to Burris. Two recent articles "Palinize" the potential successor to Obama.

For those of you who are not familiar with the word Palinize, it refers to a concerted journalistic effort to portray a public person in the crudest and most utterly negative terms imaginable. Nuance and balance are off-limits. Instead, the Palinizing journalist can only depict the object of scrutiny as an abomination, a political disgrace, and as a helpless idiot.

Chicago Tribune
Fittingly, the Chicago Tribune leads the charge. One of the allegations of corruption against Blagojevich claims that he offered to assist the newspaper in a business transaction if it fired a journalist who had been critical of his administration. The paper also endorsed Obama and has published many positive articles about him. And Obama has insisted that Blagojevich resign and has condemned his selection of Burris.

Today, the paper published a polemical article by Stephen Chapman that wastes no time Palinizing Burris. Champman, who once conceded and defended the media's "crush on Obama," begins his article -- titled "An Empty Suit for an Empty Seat" -- with a negative tone from which he never departs:

Wall Street titan Bernard Madoff proved you can take an outstanding reputation and ruin it overnight. Now Roland Burris has demonstrated that even a mediocre reputation can be instantly destroyed.

Burris is the prototypical time-serving career politician who owes his success to being simultaneously ambitious and bland. He has never been one to challenge the status quo, but no one underestimates his self-esteem. The two Burris children, after all, are named Roland and Rolanda.

And Chapman closes with this nugget, suggesting that even if Burris manages to defeat the effort of Senate Democrats to exclude him, they could nonetheless reduce him to oblivion by not assigning him to a committee:

Once on Capitol Hill, Burris may have nothing to do but bask in his new title, show up for an occasional floor vote and cash his paycheck.

For that job, come to think of it, Burris is perfect.

Washington Post
David Broder of the Washington Post is not as ruthless in his criticism of Burriss as Chapman, but his essay effectively portrays Burriss a lightweight and as a political embarrassment:

Everyone, including Obama, has been exceedingly polite in their public comments about Burris. I have known him for years and I like him. But I have never been confused about the level of his talent. He was elected as far back as 1978 as state comptroller and stayed in that low-visibility office for 12 years before moving up to attorney general in 1990.

When he tried to climb higher, he found the competition too tough. He lost a Senate race to Paul Simon, tried three times for the nomination for governor without success, and ran for mayor of Chicago with the same result. He couldn't get past the Democratic primary in any of those contests.

Burris is, in short, typical of a lot of politicians in both parties who find a comfortable lodging for years in down-ballot offices but never make the cut for the major prizes. He was distinctive in Illinois mainly for breaking the color barrier in statewide office, thanks to his downstate birth and friendships and his pleasant, accommodating personality.

My take: I expect that more anti-Burris articles will emerge in the next few days. Very few of them will focus on his political and ideological record. Most, instead, will seek to discredit the appointment and provide legitimacy for the Senate Democrats opposition to his selection.

For an interesting contrast, a self-proclaimed conservative has argued that the GOP should not join the Democrats in opposing Burris. See Matt Lewis, Republicans Shouldn't Help Dems Block Burris.