Friday, January 2, 2009

A Thought Or Two On The Burris Mess

Happy New Year, etc.

So it was looking like the whole should-the-senate-seat-Roland-Burris-? (STSSRB?) mess was headed toward a not very odd partisan divide.* Then Jonah Goldberg had to come in and muck everything up by giving a tepid endorsement to the left-leaning Amar/Chafetz argument concerning STSSRB.** The rightward-tilted Volokh people believe that the answer to STSSRB? is yes. Though they would tend to frame the question as must-the-senate-seat-Roland Burris-? (MTSSRB?). Brian Kalt agrees. And he's a member of the Federalist Society.***

Through a certain ideological lens, it would appear that the Amar/Chafetz interpretation of the impact of Powell v. McCormack on STSSRB? is the right one. Powell v. McCormack, after all, involved the House's attempt to refuse to seat the clearly-elected Congressman Adam Clayton Powell. On that basis, and based on good ole principles of the common law development, it would seem that Powell doesn't speak at all to STSSRB? or MTSSRB?

UPDATE (2:30 p.m.): Prof. Tribe proves/agrees with at least a couple of points in this post. Without even intending to. He is that cool.

*Why not very odd? Well, because right leaning legal thinkers tend to vote Republican (and vice versa). People who tend to vote Republican tend to want Republicans to win as many seats in the Senate as possible (and vice versa). And, uh, Roland Burris might be a ripe target for a Republican pickup (whereas a Democrat appointed by Pat Quinn might be a bit stronger). Just maybe.

**Of course, the structure of said tepid endorsement is typical Jonah Goldberg. Structure: (A) I don't have a strong about opinion about mildly controversial issue X; (B) But I don't think argument Y about issue X is totally crazy. A + B = Jonah Goldberg can never be wrong.

***He also went to the University of Michigan. This means that he is at least 95% awesome. Membership in the Federalist Society, however, means that he is probably 95% wrong about things not related to the awesomeness of the University of Michigan.


Anonymous said...

Not sure your partisan theory about why conservatives like Burris (easy Republican pick up) -- hasn't Burris said he won't seek election to the seat in two years? Or are you suggesting Burris is lying (a career politician lie? Never!). And if he lied about this, is it a stretch to think he has (improperly) promised to help Blagojevich land a cushy federal job somewhere if he can avoid conviction? It's not a stretch for the Senate to infer that Blagojevich has extracted from Burris exactly the pay to play promise he wanted.

The divide seems to me to come from more of a rule of law perspective -- i.e., if you believe that Powell is dispositive (as most conservatives except Goldberg seem to), then you think the issue is closed. As I read Amar, all he's arguing is that (1) it's not unreasonable to believe that anybody appointed by Blagojevich is tainted by bribery; (2) the Senate can investigate to determine whether Burris is tainted by bribery; (3) the Senate need not seat somebody while they figure out if his appointment is tainted by bribery; and (4) the Senate could ultimately vote by two-thirds to expel Burris if they figured out he is tainted by bribery.

Of course, taken to its extreme, isn't the Amar argument simply that two-thirds of the Senate could always vote to expel a member, and that vote is beyond judicial review? I guess that's right, but it's kind of scary -- so if the Democrats (or Republicans, choose your bogeyman) get a two-thirds majority, they could "investigate" and expel all of the Republicans (or Democrats). I guess it's not something to lose sleep over, but like Bush v. Gore, don't moments like this sort of remind you that the Romans probably didn't see it coming when their Republic fell apart, either?

Terry Klein said...

This is a really thoughtful comment.

Your comment about the Senate refusing to seat anybody its members don't like is something that has worried me, too. Since I first started thinking about this.

But I've come around, I think, to a view that is similar to my view (note: this is my view, not the Supreme Court's view) of the commerce clause. I think that the combination of the "necessary and proper" and "interstate commerce" clauses of Article I gives Congress pretty much unfettered power to regulate behavior of the citizens of our republic. Certainly the ability to carry guns in school zones or engage in domestic violence. Sorry, Justice Thomas.

The power can be abused, though. And if my rep. abused it, I would have no problem voting against him regardless of his party (if someone, *anyone*, would run against him, that is).

If Sens. Kerry or Kennedy decided they wanted to purge the Democratic caucus of moderates, I'd vote against them, too.

This is the nature of our country and the structures we've chosen to govern us. There are many potential abuses of power out there that we can prevent and regulate by virtue of the franchise. I think this is one such potential abuse of power, but it does sort of give me the shivers.