Chemerinsky on the law, and Blagojevich...today's LA Times

[CaliforniaPeggy]

Chemerinsky is the dean of the UC Irvine School of Law...

And I believe we should pay careful attention to what he's saying here:

Like it or not, Illinois Gov. Rod R. Blagojevich has the legal authority to appoint Roland Burris to the U.S. Senate, and Burris, the state's former attorney general, should be allowed to take the seat vacated by President-elect Barack Obama. Senate Democrats are on weak constitutional ground in trying to deny a seat to a properly selected individual. Their claim to the power to exclude a lawfully chosen senator could create a dangerous precedent.

The relevant provision of the Constitution is found in Article I, Section 5. It says: "Each house shall be the judge of the elections, returns and qualifications of its own members." But the Supreme Court has been clear that these words do not bestow on the House or the Senate unfettered discretion in deciding whom to seat.

In 1969, in Powell vs. McCormack, the Supreme Court held that the House of Representatives could not exclude controversial Rep. Adam Clayton Powell Jr. Powell, a New York Democrat, had been found to have falsified records concerning travel expenses, and there were allegations that he had made illegal payments to his wife. When the 90th Congress was sworn in, Powell was asked to step aside.

He sued the House speaker, John McCormack, a Massachusetts Democrat. The speaker's side claimed that because the Constitution gave the House the power to "judge" the "qualifications" for its members, it could exclude Powell. But the Supreme Court ruled decisively in favor of Powell. In an opinion by Chief Justice Earl Warren, the court declared: "The Constitution leaves the House without authority to exclude any person, duly elected by his constituents, who meets the requirements for membership expressly provided in the Constitution."

More at link:
http://www.latimes.com/news/opinion/la-oe-chemerinsky6-2009jan06,0,2315785.story

[WeDidIt]

1. Well, we'll just have to wait out the courts then, won't we?

My suspicion is that Blagojevich will be impeached and Quinn will appoint a successor whom Reid will seat before the courts decide.

[CaliforniaPeggy]

2. I honestly don't know if this will happen...

Time will tell...

Thanks for your perspective.

[WinkyDink]

3. Is it not fact that, AS OF NOW, Blagojevich is GUILTY of NOTHING? And therefore is QUITE within his

legal authority to appoint Obama's successor.

[CaliforniaPeggy]

4. Exactly right.

[WeDidIt]

8. Not necessarily

That's up to the courts to decide.

And things move slowly through the courts.

[Milo_Bloom]

9. Innocent until proven guilty is a legal fiction.

The law specifically allows actions to be taken based on a presumption of guilt.

[babylonsister]

10. As of now, IDIOT SON IS GUILTY OF NOTHING, too.

But there are a whole lot of folk who know he's guilty.

[stopbush]

5. But Blago made the appt and he hasn't been impeached.

And suppose Blago is impeached, removed from office and found innocent at trial? What happens then? Is he given his governorship back if it turns out that the whole thing was a charade? Is Burris seated?

Burris has been legally appointed. No matter what one thinks of Blago and/or Burris, the seat is legally Burris'...or are we to continue the 8 years of ignoring the law that we had under bush?

Perhaps we should also overturn presidential pardons while we're at it?

[WeDidIt]

7. Once impeached, that's it

Please, keep in mind, impeachment and the criminal case are two separate entities.

Impeachment is a political proceeding. Fitzgerald's case is a judicial proceeding.

And whether or not Burris has been legally appointed is open to debate, which is why we have civil proceedings taken care of in the judiciary.

[onenote]

12. whether Burris has been legally appointed is subject to dispute

For example, what is the significance of (and legal authority for) the secretary of state's refusal to sign the documentation? We can all posture about that issue, but as a legal matter, until its addressed in the courts, its a disputed question.

[onenote]

6. the issue is whether Burris was "duly" elected (or in this case appointed)

Chemerinsky blithely dismisses this argument with the assertion that "Burris unquestionably was lawfully selected." But that is Chemerinsky's opinion. No court has passed on that question. The significance of the Secretary of State's refusal to sign the documentation and/or whether the SOS has the authority not to sign have not been ajudicated. Moreover, the qualifications for a senator are expressly spelled out in the text of the constitution. What makes a selection legitimate are not. Indeed, when the constitution was ratified, senators were not elected, they were chosen by the legislature. Yet the constitution provided that the Senate was to be the judge of the elections and returns of its members. So some Senatorial oversight into the process by which a senator is selected under state law clearly was contemplated. Whether it goes so far as to allow the Senate to refuse to seat someone found by the courts of their home state to have been "duly" selected is a tough, and as yet, unanswered question. But we're not even to that point yet, since it has not yet been finally determined by the state whether Burris' was "duly" appointed.

[Milo_Bloom]

11. Chemerinsky is a great professor.. I took classes from him.

But he misses a key phrase here "duly elected".

This makes this is wholly different case.

[onenote]

13. exactly right

[onenote]

14. delete dupe

[Lionel Mandrake]

15. I find Chemerinsky's arguments quite convincing.

But I'm not a lawyer.

It will be interesting to see what happens.

K&R.

[CaliforniaPeggy]

17. I also agree with him...

And perhaps it is because we aren't lawyers that he makes sense...

Thanks for the rec...

[Zavulon]

16. I have to agree with Chemerinsky, sadly.

Burris is a tool, but he was legally appointed and it was cowardice of Reid not to seat him.

[CaliforniaPeggy]

18. Why sadly?

Because of how you see Burris?

But I am with you...Chemerinsky is right.

[Zavulon]

19. Because of how I see Burris, yes.

The man is a tool who hasn't won an election in about 20 years and is for a national gun ban, which I personally see as stupidly ineffective. I'm a pro-gun and law-abiding gun owner who doesn't want to see only cops and criminals having guns.

Flame as you want, but unless you know of a way of eliminating every gun on Earth, my opinion is that Burris' ideas on guns are stupid and dangerous.

That said, as much as I don't want this tool seated, I see nothing in the law that says he shouldn't be.