Tuesday, December 30, 2008


Harry Reid channels Justice Thomas

One of the more hilarious attempts by Senate Majority Leader Harry Reid (D-NV) to exude gravitas came when criticizing Justice Thomas with his noting, among other things that “[Justice Scalia] doesn't want to turn stare decisis precedent on its head. That's what Thomas wants to do.”

Stare Decisis – you know, respect for prior Supreme Court decisions that may have already addressed a particular issue at hand…say, the matter of allowing a particular gentleman to assume a Senate seat he had been duly appointed to:

Blagojevich Appoints Burris to Replace Obama

Governor Blagovech – because he is still governor – has the constitutional authority to appoint someone to fill in a vacant Senate seat.

When vacancies happen in the representation of any state in the Senate, the executive authority of such state shall issue writs of election to fill such vacancies: Provided, that the legislature of any state may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.” The Seventeenth Amendment

…which Illinois has done:

“Sec. 25‑8. 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 until the next election of representatives in Congress, at which time such vacancy shall be filled by election, and the senator so elected shall take office as soon thereafter as he shall receive his certificate of election.10 ILCS 5/ Election Code.

But Illinois Secretary of State White will try to reject Blagojevich Senate pick:

“Illinois Secretary of State Jesse White says he'll reject any paperwork that Gov. Rod Blagojevich files to name a new U.S. senator.

“The secretary of state keeps state records and certifies official actions.”

I am not an attorney in Illinois but this is what I find the secretary of state is supposed to do:

Sec. 5. It shall be the duty of the Secretary of State: 1. To countersign and affix the seal of state to all commissions required by law to be issued by the Governor. 2. To make a register of all appointments by the Governor, specifying the person appointed, the office conferred, the date of the appointment, the date when bond or oath is taken and the date filed. If Senate confirmation is required, the date of the confirmation shall be included in the register. 15 ILCS 305/ Secretary of State Act.

I don’t get a sense that he has a lot of leeway in all of this. What’s the difference between this gubernatorial action and the one required because of this: Ill. governor must set election to replace Emanuel.

Section 25-7 – the section immediately preceding the applicable one giving the governor the power to appoint a replacement US Senator also requires the Governor to “issue a writ of election within 5 days after the occurrence of that vacancy to the county clerks of the several counties in the district where the vacancy exists, appointing a day within 115 days to hold a special election to fill such vacancy.” [Update: If not clear, Sec 25-7 covers the House vacancy]

Is there a coherent legal argument to allow the secretary of state to pick and choose which gubernatorial actions he deigns to “certify”? I suspect such certifications are merely administrative functions and must give way to the clear intent of the Illinois constitution:

The Governor shall have the supreme executive power, and shall be responsible for the faithful execution of the laws.
Illinois Constitution - Article V

Anyway, back to Senator Reid and the issue of Stare Decisis (I didn’t forget). Should Secretary White not succeed in his blatant power grab and Mr. Burris show up in Washington as the new President’s Senatorial successor, the Majority Leader has promised a fight:

“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."

Apparently, someone told Mr. Reid this was a valid tactic because:

“1: Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Business…” THE UNITED STATES CONSTITUTION Art I - Section 5

Hell, it might even have been former constitutional law instructor Barack Obama

“Obama concurred with the senators, issuing a statement that read: "Roland Burris is a good man and a fine public servant, but the Senate Democrats made it clear weeks ago that they cannot accept an appointment made by a governor who is accused of selling this very Senate seat. I agree with their decision, and it is extremely disappointing that Governor Blagojevich has chosen to ignore it. I believe the best resolution would be for the Governor to resign his office and allow a lawful and appropriate process of succession to take place."

Now I am sympathetic as to why the Democrats want to avoid any taint of the Illinois governor but as far as I can tell, the appointment clearly meets all constitutional requirements…which leads us to whether the Senate can still refuse to seat Mr. Burris under Article I, Section 5.

Mr. Burris is at least 30 years old and a US and Illinois citizen so the only real objection is to who appointed him. Since he is inarguably legitimately appointed (by the executive authority and not, for instance, by the Mayor of Chicago), how do the legal beagles on the Hill differentiate his qualifications from those of , say, Caroline Kennedy. Anyone truly want to argue that her qualifications trump his? At least his appointment would have been at the hands of a twice-ELECTED governor. (And, for the record, I think she is qualified, too..in that she is over 30 and an appropriate citizen).

As it were, the Supreme Court – the ultimate source of Stare Decisis - has spoken on this matter: Chief Justice (and liberal hero) Earl Warren:

“For these reasons, we have concluded that Art. I, § 5, is, at most, a "textually demonstrable commitment" to Congress to judge only the qualifications expressly set forth in the Constitution.”


“Therefore, we hold that, since… was not ineligible to serve under any provision of the Constitution, the House was without power to exclude him from its membership.” Powell v. McCormack

Such reasoning seems fairly on-point to me and I would think it should also be so to some of the more prominent Democrats weighing in on the matter…unless, of course, they just want to “turn stare decisis precedent on its head.”

Side Notes I: I note the Powell case only because of its precedential value. Justice Stewart dissented in the case on the grounds that the issue was moot (the 90th Congress, from which Mr. Powell had been denied a seat, had since given way to the 91st Congress). While offering no opinion as to the overall merits of the decision, I will reiterate that I have no problem with discarding precedent when said precedent is poorly reasoned or just wrong.

Side Notes II: Although Maryland never ratified it, enough of the other states did complete ratification of the 17th Amendment (referred to above) in 1913 to finalize the shift to popular election of Senators.

Monday, December 22, 2008


Republicans corrupted Blagojevich

Apparently, there are two kinds of political scandals: Republican and bi-partisan:

“Meyer Davis's hospital wasn't the only one with problems winning approvals from the state board that reviewed new projects for health-care facilities. …The board held up requests for open-heart surgical units and community clinics, and it seemed that a high price tag was attached to moving the board toward action.

“At the center of the scheme was board member Stuart Levine, a prominent GOP fundraiser and businessman.” Secret Tapes Helped Build Graft Cases In Illinois

The very next line gives you an idea of just how prominent his GOP fundraising was:

“Levine also courted Blagojevich, flying him to fundraisers in Texas and New York at which the governor collected more than $120,000 in campaign contributions.”

This McHenry County Blog posting from 2006 makes a pretty good case that maybe Stuart Levine’s prominence in fundraising wasn’t just limited to GOP circles. I love this bit of reflection:

"“When the U.S. Attorney indicted gubernatorial appointee Stuart Levine in May of 2005, Governor Rod Blagojevich blamed the GOP and himself, depending on whether one read the Chicago Tribune or Sun-Times headline.

"It's a continuation of a culture that was established down there that we're fighting," he told the Tribune. "This is a continuation of a process that was ongoing and, very frankly, a process that involved key Republican players."

Thursday, December 18, 2008


Pro Choicers Upset With Some Choices Made

The Washington Post, in reporting that the Bush Administration has issued rules to allow a wide array of health care professionals to refuse to perform certain services because of religious objections, notes, as a way of emphasizing the potential impact of this, that:

Catholic hospitals have refused to administer the morning-after emergency contraception pill, perform abortions or treat women having miscarriages.” New Rule Protects Health-Care Workers' 'Right of Conscience' - washingtonpost.com

Why anyone thinks that Catholics should have to perform abortions or give out morning after pills (which the Church equates to abortion) is a curiosity and is no doubt result driven. (Or does the Left not normally tolerate Conscientious Objectors?) However it is the line about refusing to “treat women having miscarriages” that inspires this post because it is so mind-bogglingly misleading.

Women who have had or are having miscarriages at a Catholic hospital should normally find that these hospitals are especially considerate of the life lost. The unborn child is normally cremated and/or buried with full recognition of its human status. A miscarriage carries no moral baggage and no Catholic hospital that I know of refuses to treat women having miscarriages.

So where does this slander come from? Kindly assuming that Post writer Rob Stein is just ignorant or lazy and not simply an anti-Catholic bigot, I’m going to guess he got it from some fallout from a recent paper entitled: When there's a heartbeat: miscarriage management in Catholic-owned hospitals. From the abstract:

Catholic-owned hospital ethics committees denied approval of uterine evacuation while fetal heart tones were still present, forcing physicians to delay care or transport miscarrying patients to non-Catholic-owned facilities.”

In other words, barring mitigating circumstances (i.e. a threat to the mother’s life) if the unborn child is not already confirmed dead, the Catholic hospital will not hasten his death.

The so-called pro-choice Left, be it with their unnatural fixation on embryonic stem cell research or legislative efforts to force all to accept their just-a-clump-of-cells attitude to toward unborn children, doggedly strives to force pro-lifers into compromising positions for the big “Aha!” moment. I have no doubt the incoming Administration, projecting ambivalence on these matters and at the beck and call of a fired-up Congress, will seek to overturn this new rule and, indeed, go further with the Orwellian-named Freedom of Choice Act. Radical Chic; Meet Principle.

Wednesday, December 17, 2008


Time recognizes his awesomeness

Time probably had most of this issue written last January but now it’s official: Barack Obama is Time’s Man – oops, I mean – Person of the Year.

We gush because we love:

We thought about possibly giving it to the American voter for electing Barack Obama, for the economy, for tipping the scales in his favor. But ultimately, he is the quintessential person of the year.” Time editor Richard Stengel on the Today Show

Damn - I was that close to my second award

Update: Oops – I meant my third.

Barack Obama – Man of Action:

“In the waning days of his extraordinary year and on the cusp of his presidency, what now seems most salient about Obama is the opposite of flashy, the antithesis of rhetoric: he gets things done. He is a man about his business — a Mr. Fix It going to Washington.” Person of the Year 2008 - TIME

They then go on to list the many things he’s gotten done – as a community organizer, State Senator and most recently as a US Senator.

(yes, of course, I’m kidding)

Channeling Amy Carter:

“One was when Carter said that he had asked Daughter Amy, 13, "what the most important issue was." Her answer: "Nuclear weaponry and the control of nuclear arms." Now, a Few Words in Closing - TIME

“"And then the third thing that keeps me up at night is the issue of nuclear proliferation," Obama continues…”
Person of the Year 2008 - TIME

I blame Bush AND Global Warming:

“"And then the final thing, just to round out my Happy List, is climate change. All the indicators are that this is happening faster than even the most pessimistic scientists were anticipating a couple of years ago." Person of the Year 2008 - TIME

Yep – ALL the indicators:

“The World Meteorological Organization (WMO) on Tuesday released its weather analysis for the year and found that 2008 has been the coolest year since the turn of the century.” The Planet Gets Cooler in '08. Say What? - TIME

Because the print media is always looking to save a few bucks, I suspect we’ll be seeing this issue recycled for at least the next few years.

Tuesday, December 16, 2008


Trust Us; We're from the Ivy League

President-elect Barack Obama nominated Chicago schools executive Arne Duncan as his education secretary this morning and is expected to tap Sen. Ken Salazar (D-Colo.) later this week to serve as secretary of the interior, all but finalizing his selections for major Cabinet posts. Obama Picks Chicago's Schools Chief For Cabinet - washingtonpost.com

I once again refer to the Emoluments Clause in the Constitution and simply note that Senator Salazar was first elected in 2004, meaning his term doesn’t end until January 2011. The same objections apply that I had to Senator Clinton’s nomination to be Secretary of State.

Unfortunately, like they did for Ms. Clinton, Congress will probably just roll back any pay raises for the Secretary of the Interior and call it even. I disagree with this end-around – as did supposed constitutional stalwart Senator Byrd (D-WV) at one time but I guess, seeing as how the matter passed the Senate unanimously, he thinks the Saxbe Fix was somehow wrong for Republican Saxbe but okay for Democrat Clinton.

(Update: To be fair to Senator Byrd, voting to roll back a salary is not the same as voting to approve the nomination of Senator Clinton so I take back that last bit of snark...for now.)

For the record:

“No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States which shall have been created, or the Emoluments whereof shall have been increased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.” The U.S. Constitution Online

Words matter and the text clearly says “…shall have been increased…” meaning that any increase should be sufficient to trigger this prohibition. Had the phrase instead been “…has increased…” then it becomes a simple measure at two points in time – now and the start of the Member’s elected time. Rolling back the increase doesn’t obviate the fact that it earlier had been increased…any more than our current less-than-$2-a-gallon gas makes the price increases this past summer any less real.

I doubt that Ivy Leaguers Barack Obama and Hillary Clinton really gave this a lot (or even any) thought so I especially disliked (like many) the condescension displayed in this telling comment:

Philippe Reines, a spokesman for Mrs. Clinton, said she and Mr. Obama had anticipated the issue and were prepared to resolve it. “This is a Harvard Law grad nominating a Yale Law grad here, so all parties involved have been cognizant of this issue from the outset,” he said.”

Well, I went to Maryland Law and I managed to pass the bar exam (which tests, among other subjects, Constitutional Law) my FIRST time around…unlike a certain “Yale Law grad here”.

Side Note: I’ve come across nothing that indicates either of these two law school Ivy Leaguers have any particular well-thought out approach to reading and applying our Constitution…unlike, say, these two similarly educated law school Ivy Leaguers: Justice Scalia (Harvard) and Justice Thomas (Yale). Of course, the latter two have an unfair advantage as they were the beneficiaries of a Jesuit undergraduate education.


The Auto Market is Politically Incorrect

The talk of immediate federal assistance to GM and Chrysler has been in the public discourse for some time now. Of course, noted automotive industry adviser, Madame Speaker, had the solution identified last month:

“Pelosi said the plan would call for "immediate, targeted assistance" and must include several principles, including the restructuring of the companies "to ensure their long-term economic viability," new fuel-efficiency standards, and the development of advanced vehicles.” Pelosi Outlines Auto Bailout Package, Speaker Says Automakers Would Have To Agree To New Fuel-Efficiency Standards, Commitment To Innovation - CBS News

This goes in hand with the current CW that Detroit wouldn’t be in this mess if they just gave us what we crave – hybrids and the like.

Well, apparently, all business acumen for running our auto industry now resides solely with the Democratic leadership in Congress:

"Toyota Motor Corp., heading toward its first U.S. annual sales decline in 13 years, indefinitely delayed the opening of a plant in Mississippi that was to begin building the gasoline-electric Prius hatchback by 2010.” Toyota to Delay Mississippi Prius Plant Construction

…and, I guess, we don’t know what we want:

“After peaking at 181,221 in 2007, Prius sales through November are down 9.6 percent to 151,025.”

I’m sure it is at times like this that liberal politicians must wonder if their incredible talents and smarts wouldn’t have been put to better use running these businesses they clearly know more about...

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