The Senate is the greatest dithering body in world history. They are up to this challenge.

You have to realize that there is no way they will ultimately reject him because the race card has already been played. Republicans are ordering more popcorn.

You have to realize that there is no way they will ultimately reject him because the race card has already been played. Republicans are ordering more popcorn.

Leave it to Rod Blagojevich and Bobby Rush to play it as hamhandedly as could be imagined. Those two couldn't manage to sell sex, chocolate or a winning lottery ticket. And they've been outplayed by the black president-elect on this one.

But to someone as incapable of nuance as you, Mike K, Blago's and Rush's performance probably looked like subtlety in motion. Enjoy your popcorn. Burris will be seated, but because of the law, not the race card. At the end of the day, you won't have Senator Mark Kirk, will you? Sorry about that.

You should keep up more with your commenters -- j bean noted in a thread below that there IS a precedent: Frank Smith, appointed, then elected (from Illinois, natch), but rejected by the Senate.

The Frank Smith case is interesting, cuz it speaks directly to the issue that Obama and Reid are raising, that the Senate "can not accept" a Senator lawfully chosen by the state of Illinois.

There is a Constitutional conflict between the right of the people of any state to choose for themselves whoever they want for the Senate and the Constitution's authority for the Senate to "expel" a Senator they don't like.

The Smith case was considered, and rejected as a precedent when the Supremes decided Powell. In the Powell case, both the majority and Douglas' concurring opinion insisted that the ONLY factors in Congress' Constitutional authority to judge the qualifications of a member, are the ones laid out in the Constitution -- age, citizenship, residency among those represented. Douglas concurrence nailed it -- the Constitution makes certain rules for becoming a member of the House or Senate, so the only way to ADD a new requirement is to amend the Constitution.

But there is still a conflict. The current Constitutional situation is that there is a direct SCOTUS precedent that says Congress has no authority to exclude, and a more distant (yet even more direct) Senate precedent that the Senate can exclude AND expel, regardless of an appointment OR an election.

Stevens would probably have been a better test of the Smith rule than Burris. Stevens was elected in 2002, and convicted of felonies before his term expired. The Senate could have expelled him -- but if Alaska had re-elected him in 2008, the Powell decision clearly shows they would have no authority to EXCLUDE him from the Senate in 2009. Whether they would have had the authority to expel him in 2009 after he'd been re-elected in 2008, is a more open question than the language of the Constitution suggests.

The theoretical test to resolve the conflict would be if, after the Senate expelled somebody, the state re-elected him: which prevails, the authority of the people of a state to choose their representative, RECOGNIZED by the Constitution; or the authority of the Senate, CREATED by the Constitution, to expel Senators it doesn't like?

There are two things about the Smith case which may make its traction a bit slippery: first, in the Smith case the new Senator was the guy accepting cash, while Reid has made it clear with Blagojevich and Burris that the Senate's problem is with the one making the appointment, not the one appointed.

That's problematic, cuz while (arguably) the Senate can over-rule a state in who it expels, they don't get to choose who is governor of Illinois.

Second, Smith happened before the Powell decision, in which the Supremes did not accept it as precedent. I don't believe the Smith example was ever tested in court, so until something changes, Powell has to be accepted as the applicable Constitutional law.

Presumably, the steps will be that Burris shows up in the Senate, which refuses to swear him in. The first judge would, barring any idiosyncrasy of Illinois law, direct the Senate to swear him in, citing Powell. The Senate probably has authority, pending a SCOTUS action, to refuse -- they can cite the Smith case.

I dunno what happens if the Supremes refuse to hear it. I suppose, if the Senate is defying the courts and SCOTUS doesn't grant cert, the legislative branch prevails.

But Obama and Reid have upped the ante, even as they have painted themselves into a corner.

I think Blago has played his cards very cleverly. What good is impeachment now? As much as Reid and Durbin want to not seat Burris how can they attack Burris personally? After all is said and done Blago is still the Governor of Illinois. Appointing someone is still his responsibility.

At this point the Senate has to attack Burris. Good luck with that. The man has been squeaky clean throughout his long and reasonably successful career. I seriously doubt Blago has ask him for anything. Any way the Democrats need the vote.

My guess is Dick Durbin emerges from a meeting with Burris saying that he has looked into Burris' soul and believes him an honorable man who will make a good senator.

One question, Steve: What makes you think the AP "did some research?" I see no evidence of that.

All of the precedents discussed involve candidates or congressmen with serious ethical and ethical clouds over their heads. I don't think there is any precedent for this case where only the appointing governor is suspect. The Senate has to get something on Burris. Like I said, good luck with that.

shortstop, your best arguments are insults. I agree with that. You've also missed Blago's best motive for all this. He has now guaranteed his acquittal by a Chicago jury. He may not be very smart but he knows his city and its jury pool.

...the appointment could be referred to the Senate Rules Committee for an investigation. While that was ongoing, state lawmakers could impeach Blagojevich.

What difference does that make? Blago could be impeached tomorrow, but doesn't affect the validity of an appointment he made yesterday.

More significant is the refusal by state authorities to certify the appointment. That could delay matters long enough for a new governor to be sworn in and make a fresh appointment. And, hey, it might still be Burris!

"ethical and legal clouds"

I watched Burris on Rachael's show last night. He so desperately wants to be a US Senator, it's actually touching.

So now we have two dramas: Franken/Coleman and Burris/Senate. My question is: If the Senate is willing to forgive Lieberman, why not seat Burris? Is trying to sell a seat really that much worse than selling your soul?

Blago's appointment of Burris is kind of like calling a bastard, "illegitimate", forever tainted by the sin of the father.

Unfortunately, before the Illinois state house could castrate the sinner, the sinner had balls enough to impregnate the process, forcing the Dems to not castigate the sinner's senator. So, can the Dems walk the abortion talk, removing this black fetus from their lilly white chamber?

For the life of me, I don't understand what the big fuss is about. We're supposed to be a nation of laws not men. Blago has the constitutional right to appoint the Senator & did so.

As far as I know, Burris has no ethical clouds hanging over his head, so the Senate has no reasonable excuse to reject his appointment. He'll be Senator until such time as there is an election to fill the seat.

What was the alternative? To fart around and leave Illinois without a Senator until such time as Blago is thrown out of office or resigns? And when will that be?

Mike K: He has now guaranteed his acquittal by a Chicago jury. He may not be very smart but he knows his city and its jury pool.

Ooooh, I think that was supposed to be a subtle dig at the number of African Americans in Chicago! What a light touch you have! Have you considered throwing your hat into the ring for RNC chair?

Boy, you really don't understand how things work around here, not to mention how the justice system works in a case like this. Please, keep talking.

John B. The problem is that the Senate unanimously passed a resolution saying the Senate wouldn't seat anybody appointed by Blago before thinking the matter through. Reid and Obama have been loud in their criticism of the appointment.

The Senate and some important Democratic politicians are going to have to eat a lot of crow on this one. Otherwise the scandal could slow down the economic recovery plan. To handle the crisis the Democrats are going to have to change the focus to Burris himself. Fortunately nobody has said a bad word about Burris. Apparently some of their advisors had some good sense.

There's a lesson in this. People should just STFU. Don't make threats when you're not sure you'll have the power to carry them out.

What if they bottle up the appointment in the Rules Committee and then a new Illinois Governor comes in and appoints a new Senator? The Rules Committee could then choose between the two Senators --- choosing the Senator picked by the sitting governor instead of the one picked by the ex-governor.

In another weird twist of this, since Burris doesn't seem objectionable, what if the Rules Committee put a hold on the appointment and then new Illinois governor got in and appointed Burris --- once he was duly appointed by an untainted new governor, the Rules Committee could allow him to be seated. Would that solve this mess in a clean way? Or would this be too much of a win for Blago?

I might have agreed with Mike K re: Blago and the jury pool, but he obviously wasn't watching the Chicago news last night or listening to local radio. Believe it or not, our community -- black and overall -- can have respect and admiration for who Burris was before all of this and still see Blagojevich for who he is. The people have spoken and they don't want this governor, no matter what cards he plays.

Everyone is assuming that a new governor of Illinois is a given when Blago is impeached. The impeachment committee right now appears to be a comittee locking for a crime to impeach on. Patrick Fitzgerald wants to give redacted evidence to support impeachment. So you have a prosecutor picking and choosing what evidence he wants to give to a body to force out an elected governor. Can anyone say Mike Nifong. This is only going to get uglier. The Democrats put themselves in this mess. They allowed themselves to be painted as corrupt. They correctly denounced Blago but refused to add the codical of the presumption of innoncence and lets wait for all the evidence to come out that they routinely give their adversaries.

Aline... Fitz has already asked for an extension of 90 days, too. Yes, he's trying Blago only in the court of public opinion.

And, where's the Karl Rove head on your wall, Fitz?

Folks, let's not overrate this guy's skills too much, eh?

Boy, you really don't understand how things work around here, not to mention how the justice system works in a case like this. Please, keep talking.

Posted by: shortstop

I know it's kind of old fashioned but why don't we see how this plays out? My guess is that I will be closer to the truth than you are. But we will see. In Chicago, the "justice system" has a few problems. I grew up there and know it well.