Tuesday, December 30, 2008

The law is the law...except when it's not

An interesting take on the law over at Volokh:

At risk of offending my many friends in the legal academy, I think that law is a shockingly phony discipline. Virtually everyone - liberal, conservative, Marxist, libertarian, or whatever - imagines that the law conveniently agrees with what they favor on non-legal grounds.
In an earlier post, Eugene Volokh wonders if Rod Blagojevich's appointment of Illinois AG Roland Burris can be blocked, either by the Illinois Secretary of State or by the U.S. Senate:

If there's some evidence that Burris's appointment was indeed the result of a bribe or some illegal maneuvering, then indeed the Senate can refuse to seat him. But if there is no such evidence, then for reasons I noted earlier, I think their position is legally unsustainable, given the Supreme Court's Powell v. McCormack precedent.
On the one hand, it appears that the law is clear and the (not-yet-impeached) governor can appoint whomever he wants to fill Barack Obama's Senate seat. On the other hand, it seems reasonable that the legislature has a check on executive power in extraordinary circumstances (e.g. Senator Oprah). The "phony discipline" lies in determining where the extraordinary circumstances begin, I suppose. This sounds like a job for the legal bloggers.

Extra - Red State: "Looking ahead to a Constitutional crisis."

More - John Cole weighs in: "Blagojevich will have his day in court, but for now he is legally the governor, he is legally carrying out his duties, and unless and until the Democrats grab the stones to get rid of him, they should suck it up and deal with his pick." Yes, there's that approach.

And this - Bench Memos: "State law as it currently stands empowers the governor of Illinois to make this appointment. Rod Blagojevich is still the governor. Brazenly shameless this act may be-but constitutionally valid it certainly is."


Brian said...

The U.S Senate can, and actually has in the past, refused to allow a person to sit as an acting U.S Senator.

From CNN:
"under Article 1, Section 5 which states "Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members…"

Reid and other Democrats are hinting extremely heavily that they will not allow Burris to sit as Senator from IL.

Anonymous said...

Yes, the Senate can do that, but they will have to justify not seating a qualified black lawyer with a history for public service, appointed by a "innocent until proven guilty" governor. My guess is that they are hinting to derail the process, past history suggests that they lack the backbone for this kind of fight, and given their inept performance up to this point, not sure they would will win the PR battle in the media.