As we've been reporting, any attempt by the Democrats to deny seating Roland Burris is undermined by the Supreme Court's Powell v McCormack decision, which held that the Congress is limited in its ability to challenge the qualifications of its members to grounds explicitly outlined by the Constitution.
Reid spokesman Jim Manley, by way of Ben Smith, has word on the Majority Leader's potential workaround:In response to those who are asking how this is different from Powell v. McCormack, in which supreme court said House could not refuse to seat a member based on his alleged corruption and said only qualifications to be considered are those listed in the Constitution:
This is certainly a stronger argument than trying to challenge Burris's qualifications, something which was explicitly addressed by McCormack.
[W]e are not making a judgment about qualifications of appointee, but about whether appointment itself is tainted by fraud, which we believe we are entitled to do under Art. 1 s. 5.
This is like judging the integrity of an election, free from fraud or corruption. It's the process that led to the [appointment], not the appointee's fitness.
Article 1, Section 5 of the Constitution holds that "Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members". If Reid is not attempting to judge Burris' qualifications, then he'd presumably have to argue that a Senatorial appointment is tantamount to an "election", which seems on the surface like a liberal reading of that term. EDIT: Some of the lawyers in the comments section, however, seem to think that this is a trivial distinction, and cite previous instances (.PDF) in which the Senate did attempt to challenge an appointment.
Nevertheless, if you read the McCormack opinion, the principal reason why the Court decided to interpret the qualifications clause narrowly is because there is an alternate mechanism available to the Senate: expulsion. The Court conceivably might hold that the other provisions of Art. 1 s. 5 should be interpreted narrowly for the same reason.
We should keep in mind, however, that ultimately winning this court case doesn't necessarily do a whole lot of good for Reid. All that would mean is that the Democrats would be short a senator until Illinois either held a special election or impeached Blagojevich, neither of which appear likely to happen especially quickly. Rather, the goal is to find some pretense by which the Democrats can keep Blagojevich at arm's-length -- and forcing Burris to go to court to get his seat would presumably allow them to do that.
NOTE: Edited for truthiness.
12.31.2008
Reid's Constitutional Argument on Burris
@ 10:33 AM
Subscribe to:
Post Comments (Atom)
119 comments
The biggest difference between Burris and Powell is that Powell was elected by his constitutents after the allegations of corruption were made, while Burris was appointed by the person against whom the allegations were made.
I think the fact that the voters had no say in Burris' appointment makes this a very different case in terms of the Senate's power to admit him.
Nate, an "awkward workaround" to you is what we lawyers call interpreting a statute. Stick to statistics, my friend. If you want to opine on law I am afraid you will need a lot more experience in the field or perhaps a law school degree.
I'm no constitutional scholar but i'm guessing the term election not used in its modern sense but rather meaning chosen or appointed. Since the framers set up a system whereby state legislatures would appoint senators. I think Reid has plenty of room in this.
Another thought. What makes anyone think Powell v. McCormack is "good law"? Textually, if the Senate is the "sole judge" of its members "qualifications," and assuming the appointment isn't a "qualification" (which I wouldn't in interpreting the provision, but apparently many have done), why would the present Supreme Court honor a Warren-era result-oriented decision. (Adam Clayton Powell was a very "controversial" figure.)
I believe Powell is not faithful to the Constitutional text it purports to interpret. If the Senate is the sole judge, the Supreme Court should not be getting involved, even in telling the Senate what it is the Senate is judging.
So, I think Burris would lose if Reid stands his ground and the Supreme Court decides to hear the case.
Would the Court agree to hear the case? I haven't taken a look at the Constitutional on this point, but I also suspect Burris would have to file initially in the District Court. If so, it could take a while for this case to work itself up to SCOTUS. If Burris were allowed to file at SCOTUS, the court would have to appoint a special master to hear evidence, Well before the case were even heard at SCOTUS Blagojevic will be making his bed at Club Fed.
I think Reid could pretty easily argue that the appointment lacks merit because Blago is not qualified to make it while he's been indicted and is facing expulsion from office via any number of means.
Basically, to be a qualified Senator, Burris would have to be duly appointed. In this case he was unduly appointed and is therefore unqualified.
Reid should leave this one alone. You mean now he has the testicular fortitude to take a stand on something? He needs all the Senators he can get, and take a decisive stand on filibusters.
There's an elephant in the room, and ignoring it isn't going to do Reid any good.
wv: struma - leading people on, with no intention of following through
The majority opinion in Powell did not determine whether a House has the constitutional authority to exclude a member based on qualifications via a majority vote. The concurring opinion did, but that has no weight as precedent. In fact, the point that the Justice felt the need to write a concurring opinion should be a clue that the majority opinion found something different.
The majority opinion only ruled that Powell, who had previously been judged to have qualified for the House (because he had been elected many times previously), could not be excluded by the House as unqualified. They did not need to explore the larger question as to whether the House can EVER exclude a member, since the facts of the case did not need that determination.
Powell v. McCormack is just an enforcement of consistent standards on the judgement of a House when reviewing qualifications.
Nate, you're not a lawyer. The difference between Powell and Burris is significant. Powell v. McCormick can easily be argued as irrelevant to the Burris situation.
It is perfectly reasonable to interpret "elections" as including any method of selecting a member for the Senate, including appointments. Although the 17th Amendment came on line in 1913, before that, there were not popular "elections" of Senators. Senators were "chosen" by the state legislatures. That method of "choosing" Senators can be called an election, but we're really talking about parliamentary procedure in the statehouse. To the extent that it is not odd to call that an election, it is also not odd to call an executive appointment an election. The distinction you point to will not bother any court, and you don't need any precedent to make the case.
Also, Reid does not need to win the lawsuit. If you read the Powell decision, you will see that the defendants challenged the court's ability to issue an opinion on the grounds that the case had been mooted by Powell's re-election and seating in the 91st congress. He was originally excluded from the 89th Congress. The Court decided it was not mooted, but the facts might be different in this case.
Reid et al can exclude Burris based on elections, wait for the suit, and then try to ensure that Burris is defeated in the primary in 2010, which is very likely to happen. Then they can argue that the case is moot because Burris lost his seat. End of story.
Look, I'm not trying to be a jerk, but these things aren't always as simple as they appear.
Wayward: The majority opinion in Powell did not determine whether a House has the constitutional authority to exclude a member based on qualifications via a majority vote
Doesn't McCormick, say, "In judging the qualifications of its members under Art. I, § 5, Congress is limited to the standing qualifications expressly prescribed by the Constitution"?
I can see the Senate majority shifting the burden of proof, at least. By voting to delay seating Burris, it forces Burris or the Illinois Governor to bring suit against the Senate. Now I can imagine the SCOTUS granting cert and a quick hearing, but they can't enjoin the Senate from this action.
Then I agree with STepper that the Court would have to reconsider "Powell" and might well take an originalist position about the Congress being the "sole judge." That plus the argument that Reid is putting forward will make for an interesting case, to say the least.
BTW/ STepper, people with law degrees fall all over the place in their competency in law; and as we know, they argue with one another all the time, and there are about as many losers as there are winners, even among HLS grads.
wv: diouse (Is there a lawyer in diouse?)
There are a number of pre-1913 precedents of the Senate investigating appointments as elections: the Quay appointment in 1899 comes to mind first.
The Senate can clearly investigate and vacate the seat based on its power of judging elections.
Stick to stats, Nate. You're out of your league.
Nate:
What in the heck are you talking about "the Framers didn't think about appointment." It's right in Article I, section 3:
"...and if Vacancies happen by Resignation, or otherwise, during the Recess of the Legislature of any State, the Executive thereof may make temporary Appointments until the next Meeting of the Legislature, which shall then fill such Vacancies."
From 1789 until the 17th amendment, appointments were treated identically to "elections" and "choices" of the state legislatures, for the purpose of judging elections and returns. It's just true history. Wake up already.
Nate, you may be a whizz with statistics but you're not a constitutional lawyer and it shows. You can read experts' opinions about these issues but without a strong legal background it's difficult to have any idea who's right.
Bottom line: This situation is a LOT more difficult to analyze than you're making it out to be. It's not clear at all that Burris can force the Senate to seat him, and in the practical world he's going to lose in the end. And your opinion that a senatorial appointment is constitutionally different than an election is highly questionable. You simply have no idea.
Reece is right: "Also, Reid does not need to win the lawsuit. If you read the Powell decision, you will see that the defendants challenged the court's ability to issue an opinion on the grounds that the case had been mooted by Powell's re-election and seating in the 91st congress. He was originally excluded from the 89th Congress. The Court decided it was not mooted, but the facts might be different in this case.
This is only one of at least a dozen issues that could sidetrack any Burris appeal.
These are only a few of the possible outcomes:
1) The federal courts could decline to exercise jurisdiction without ruling on the ultimate issue of the Senate's power, thereby distinguishing Powell simply by saying it doesn't apply in this case, and issuing guidelines for the Senate's consideration, but but without ruling whether the Senate has properly exercised its power in this case.
That's equivalent to punting and there's a strong tendency to do that in controversial cases involving the separation of powers.
They might do this if Burris loses at the district court and appellate levels and it would have the practical effect of leaving Burris without an effective remedy, but without involving the Court in a Constitutional controversy.
2) They could decline to rule on the grounds that the case is moot, because by the time they are ready to hear the case, Blaggo has been removed from office by impeachment or imprisonment, and a special election has been called. In that case the seat would probably be vacant for most of 2008 until the result of the Special election was certified. That would be the most popular outcome.
3) They could rule that Art. I, Sec. 5 does give Congress the power to determine whether the election was tainted by fraud.
4) They could rule in favor of Burris, and force the Senate to seat him, but allow the Senate to expel him on Art. I, Sec. 5 grounds by holding that the CIRCUMSTANCES surrounding his election were tainted, even if no wrongdoing were imputed to Burris.
All this will be unlikely anyway. Burris is going to be forced to resign. The pressure is just going to be unrelenting.
Right now he thinks this will all blow over, the Senate will have to seat him and everybody will just get used to it.
He doesn't understand the media if he thinks that. The media are going to pronounce him guilty. Then they're going to demand that he resign or be removed.
If he refuses, there will be an endless slow torture of leaks and innuendo and accusations. The Republicans are already gleefully gearing up their scandal machine to make the Burris appointment the symbol of Democratic corruption and they have a LOT of media allies in this fight.
Burris is going to be destroyed. Just watch and see. Reporters are going to probe into EVERY single thing he's done in his life and every scandal or pseudo-scandal, or thing that even looks or sounds bad he's done in the last 40 years is going to be dragged out on Fox News.
If he thinks he can withstand that firestorm, he's kidding himself.
I'm no Constitutional scholar, but election just means a choice made freely, such as
"Normally I prefer chocolate, but today I've elected to have vanilla instead".
It doesn't mean that I polled me and a majority of me wanted vanilla.
An appointment IS an election. It's just an election (choice) by one person.
You really need to get a Constitutional lawyer for stuff like this. You're going too far out there.
I think this one is pretty clear cut legally. The Senate can temporarily delay for the purposes of an investigation to determine if he was duly "elected."
However, regardless of how corrupt Blagojevich may be, he is still the Governor of Illinois and the legislature in Illinois, pursuant to the Seventeenth Amendment, has given him the authority to make a temporary appointment.
While Powell is not directly on point, I think the Courts would handle this matter relatively expeditiously and order Burris seated if the Senate delays more than a month or two in seeking to seat him.
As was widely discussed by myself and another attorney last night, Reid's whole argument hinges on one fact, that will be disputed.
The question is, is it enough that some aspect of the process has been questioned by a Federal prosecutor, or does his selection of Burris himself need to be shown as tainted. I think courts will find the latter, and there is likely no issue in the selection of Burris. Others have argued, as Reid does here, that a general taint on the process is enough to disqualify the selection. I disagree, as do many other attorneys - but I have been wrong before ;)
Here we go again...
Two things:
(1) What did the word "election" mean in 1789? It may well have had a more encompassing definition akin to "selection". Not that I think strict construction is the way to answer questions like these...
and (2) STepper, if the holding in Powell is no longer good law, what is to prevent a majority of Senators or Congressmen from refusing, by simple majority vote, to seat a duly elected colleague because he is, say, from the minority party. That would put politics above the will of the voters of the colleagues state/district and that is what Powell, rightly, IMO, is supposed to prevent.
An excellent summary of where we ended up yeserday, fred.
Watching this Keystone Cops exercise play out is becoming high entertainment, indeed. The hapless Reid has once more engaged in crawling out on a limb and sawing it off. If history is a guide, a whining session about "bipartisanship" will come next.
Cugel-
You are completely over-arguing your point, and makes it your argument legally wrong.
I have no legal research, but the things that need to be researched include:
Does an "election" include an appointment?
How free is the Senate to decide who to seat (Powell would say not very...)?
Even if an election includes an appointment, what level of taint is required to not seat the new Senator - legally chosen by the state of IL.
Many of these points of law are cases of first impression, thus to act like you know it all Cugel is a bit silly.
As for Nate, he actually has done a very good job for a non-lawyer. That said, I think Nate needs to go to law school, he would really enjoy patent law.
Nate to law school? No chance. Business school? Nah. PhD? Probably not.
P.S. You don't need a law degree to argue law or the constitution.
yeah, Nate could become a sports agent, another Scott Boras.
I love those people who are definitively opining that Nate is "out of [his] league."
It could be argued that the 17th Amendment created a blank slate in terms of the Senate's power re: investigating elections and that precedent prior to 1913 is not dispositive.
But, I think the real point is that anyone who uses the word "clearly" in summarily addressing this question is approaching the same error that he/she accuses Nate of. It's an interesting case. John - you clearly have access to some precedent, instead of sending summary shots across the bow, how about you actually expand upon your thoughts in detail?
I think the Senate, if it read Powell honestly, would find it couldn't constitutionally keep Burris out, because there's very flimsy evidence that this appointment was corrupt. But that wouldn't be the test in front of a court - the court would probably accept any evidence. And in the end, the Senate would probably win.
There are two issues here.
The first is the constitutional construction - does Congress have the power to expel for the reason they're giving?
The second is whether the facts support Congress' judgment.
The courts can (and will) pass on the first question. Powell won on this question. Even if he was corrupt, the Constitution provides a list of reasons he can be excluded, and corruption ain't on it. He had to be expelled, which requires far more votes.
The courts will avoid the second question like the plague. This is the question that is entrusted to Congress' discretion alone. They probably won't review it, if they do review it, it will be very, very light review.
As for timing - this could come to the Court really quick if it wants to take it. There are few or no facts to consider, just law. And the Supremes could even take the case from the DC Circuit before they render an opinion.
As pointed out above, the word "election" means a choice, not a particular method of making choice, of popular vote is only one example. Moreover, the Framers' inclusion of the word "return" shows the breadth of the clause. A "return" is a statement by a person of what he has done in response to a command by authority. In parliamentary context, the King issued writs to sheriffs to conduct elections to choose members of the House of Commons. The sheriffs would then "return" the writ endorsed with the result of the election. Thus, "return" ought to be equated with any communication that purports to certify the selection of a member of the house. Senate Rule II calls for a "certificate" signed by the governor and secretary of state of a State as the the credential of "Senators elect or of Senators designate," that is, whether chosen by popular vote or by executive appointment, as the forms appended to the rule show. I would equate those certificates with the "returns" mentioned in Art. I, sec. 5.
There was much controversy in England whether the House of Commons or the King's courts had jurisdiction to judge those "returns". Our Constitution clearly disposed of that controversy, regardless whether the choice of senator or representative was made by the people, legislature, or executive of a State--all of which methods were contemplated the original Constitution.
Can you imagine Nate as your agent? He would have so many stats showing you were worth billions you couldn't help but make more.
And by "he's corrupt" I mean specifically that his appointment was corrupt. The evidence is flimsy, but its probably enough to satisfy a court that Congress is excluding based on election irregularities rather than a simple air of corruption.
wv: edisoe - the football genius combination of edison and bledsoe
Reid is trying to block Burris to save face, so the republicans can't use the fact that they let in a Blago appointed senator to tar them in the midterm elections. Thus, it seems to me, that the dem leadership will only put on a quick show of resisting Burris, The democrats don't want to become the party of corruption, and having a prolonged battle with Burris will only keep the Blagojavich scandal alive that much longer. If they just put up a quick show of resisting Burris, this whole thing blows over much faster, and they get one more senator for the time being. Plus, if Burris gets defeated in the 2010 primaries, the repubs can't really use it to tar the dems without sounding petty.
The real problem is that Blago still has the authority to make these calls. The Democrats should have turned him out the day after the indictment. They didn't. The other problem is the special election route, which is the equivalent of rolling the dice in keeping power with the Democrats. (Never mind that the Republicans have an amazingly short bench.)
Ultimately, Burris will be seated. Harry Reid will stomp his feet through the courts, but he will still be seated. (A legal Governor made a legal appointment of a legally qualified individual.) Obama won't say a word beyond what he has said already. Burris will serve for two years and leave quietly. And Blago will be gone by February.
I'm no lawyer, but it seems to me that even if the Senate doesn't have the power to reject the appointment, they do have the power to refer the question to a committee for consideration -- for example, to investigate if there was a quid pro quo for the appointment. What if they did that and tried to just bottle the appointment up until Blago is gone and the new Governor can make a new appointment? If the Senate wants to say "We're not saying yes or no, we just need more time to review the case," would SCOTUS be open to the idea of forcing them to act?
By the way, Burris and Rush have been way overplaying the race card for the last 24 hours. It serves as quite a contrast to Obama's "use" of race during the campaign and the highlights the weakness of MaCain's arguments that he was playing the race card when, for example, he complained about Obama's looking different than the other Presidents on dollar bills. In other words, you want to see "playing the race card"? THIS is playing the race card:
"You know, the recent history of our nation has shown us that sometimes there could be individuals and there could be situations where schoolchildren -- where you have officials standing in the doorway of schoolchildren," Rush said. "You know, I'm talking about all of us back in 1957 in Little Rock, Ark. I'm talking about George Wallace, Bull Connor and I'm sure that the U.S. Senate don't want to see themselves placed in the same position."
-Rush this morning on CBS
Real Mike-
The impeachment process is a long slow one in IL. Madigan (the IL AG) did try to get Blago suspended by the IL SC but that case was summarily dismissed.
Interestingly, Burris has said he would have tried to remove Blago by any legal means as well if were still the AG, the problem is there is no fast way to do it.
Here are some precedents on appointments being treated as elections. Note that the referals go to election committtees, the Senate rejects by majority vote, and they don't even always follow the committee recommendation. All the cases are reviewed, among others, in United States Seante Election, Expulsion, and Censure Cases, published by the Senate.
Kensey Johns appointment (1794): Delaware governor appointed him on 3/19/1794, he presented his credentials on 3/24/1794, Senate referred the matter to an ad hoc Committee on Elections same day. Committee reported he was not entitled to a seat two days later, based on improper appointment.
James Lanman appointment (1825): Governor issued appointment while legislature was in recess, but prior to expiration of new term on 3/3/1825. Senate challenged appointment, and referred it to elections committee on 3/5/1825. Committee reported in favor of Lanman, but Senate denied his appointed 18-23.
John Allen, Lee Mantle, and Asahel Beckwith appointments(1893): legislature had failed to act, stuck in deadlock. So governors of Washington and Wyoming appointed them. Credentials presented march 1893, Referred to Committee on Privileges and Elections, committee reported back 3/27/1893, Senate vote in august to dney seats (Asahel had withdrawn).
"fred said...
Cugel-
You are completely over-arguing your point, and makes it your argument legally wrong."
You clearly didn't read or understand what I said, or maybe both.
I pointed out that my four points were only EXAMPLES of possible ruling the courts could hold. There are literally A DOZEN MORE I could think of off the top of my head -- and not one of them is necessarily the one the courts will rely on at all.
Sorry Fred but you don't KNOW what the key legal issues are going to be. It all depends on the context in which the case is brought and the exact circumstances.
You're focusing on the underlying legal merits of Constitutional Senatorial power because that's where the interest is, but this case is at LEAST as likely to be decided on narrow procedural grounds as anything and the exact circumstances under which any case is brought will matter a lot to the outcome.
That's what I'm trying to point out. Any experienced appellate lawyer knows this and I served as an appellate law clerk writing judicial decisions for judges for 2 years.
So, I'm not claiming that those four points are the beginning and end points for a legal analysis. I'm arguing that nobody has a clue how this will proceed or what the courts will do and those are some examples of ways the courts could AVOID making a ruling on the ultimate merits of the case, which they will be at least somewhat inclined to do.
My second point is that the media will ultimately decide Burris' bid for power by dragging him through the mud day after day until he gives up.
Reid is already anticipating the endless media assaults and is trying to avoid it by barring Burris. By the time he hits the Senate floor Democrats are going to treat him like a walking social disease and Republicans are going to be actively painting him as the poster child for Democratic corruption.
This is not going to have a happy outcome for Burris.
Real Mike,
The Illinois legislature really could not have impeached Blague so quickly. They could have stripped him of the appointment power, though. If they didn't want a special election, they just could have given the power to themselves or Quinn, no? I have to side with the Illinois Republicans on this one. The Illinois Dems totally dropped the ball.
kennyb-
Welcome to IL politics (Chicago litigation works the same way). It is as aggressive as possible, and every iota of leverage is used. The race card is just another leverage point.
The first is the constitutional construction - does Congress have the power to expel for the reason they're giving?
The Senate is not attempting to expel Burris.. he would need to be a sitting member for that.
So far, they have only announced that they are using their Article I right to judge the election, not the qualifications.
Were they to alternately attempt to exclude Burris via majority vote, it would be up to Burris to get the Supreme Court to issue a new ruling covering the qualifications of new members and the applicability of Senate rules regarding membership. Powell simply isn't going to attach; it was reviewing an arbitrary exclusion of a congressman previously shown to have been qualified.
I should think that the fact that the Governor is under federal indictment for trying to sell the Senate appointment provides a reasonable basis for the Senate to delay seating Burris long enough to investigate the circumstances of this particular appointment.
They don't have to seat Burris (with the option of subsequent expulsion). They don't have to wait til Blagojevich is convicted, either by the federal government or the Illinois legislature.
Within the Senate, this will be much more a political question than a legal one. And they need not assume from the precedent of one SC case that they don't have the right to delay appointment until they can investigate its circumstances.
At the same time, I don't think the court would avoid the case. I think they would easily get the 4 justices needed to grant cert.
The resolution of this case -- or at least the constitutional arguments in that resolution -- would likely be very relevant to the Minnesota case that's brewing. For this reason, too, I think the Court would be willing to take the Burris case (clean candidate but possibly corrupt process) with a strategic eye on precedent for the Coleman case if it gets there (flawed election process [MN SC error, in my judgment], though not a corrupt process; possibly a corrupt candidate, however, needing to be expelled later if Coleman is convicted of corruption).
Another element in the Burris case is the goveror's argument that Illinois is entitled to have two Senators and that the Governor is obligated under Illinois law to act quickly as he did. Why shouldn't Pawlenty also therefore take action to assure a temporary appointment (of Coleman) while all the legal wrangling works itself out?
Cugel-
I fully understand your points, tyvm.
Only 2 and 4 are very likely, 4 being the most likely and I think there is a real question of whether they can must the 2/3 vote needed. The likelihood they can avoid this via procedural BS in low, the case is too high in visibility.
As for the press,the whole thing will blow over if we get a poll in IL saying the people support the appointment - and I think there is a good possibility that is exactly what a poll will find. Burris has a good name in the state.
As for you insane rantings about deep knowledge, you wonderful analysis, or at least the most probable ones (2 and 4) were already discussed on these boards yesterday so maybe we do know just a bit about the law.
Juris, remember, Blague wasn't indicted yet. In fact, Fitzpatrick has just gotten a 90 day extension to do so.
You took the words right out of my mouth kennyb. Fitzgerald has only said he is the target of an investigation, and publicly covered some of the evidence (the really juicy stuff).
Fitzgerald has also asked the IL impeachment committee not to jeopardize his case, and he would ask the same of any Senate committee looking for taint.
I never argeud that Nate needed to go to law school to argue legal points, although I observed that that would be helpful. I said he either should go to law school or get more experience in the area of law first. His discounting of legal arguments making distinctions between "appointments" and "elections" and failing to comprehend what the current SCOTUS would probably do, make his conclusions suspect. Just because Powell v. McCormack stands as precedent does not mean it will be followed (assuming it is precedent.) Anyone following SCOTUS since Scalia's and Thomas' appointments can read the handwriting on the wall.
What we're all ignoring is the elephant in the room. All the Senate needs to do is delay the appointment and it will become moot. Once Blago is impeached and convicted the Lt. Gov. will withdraw the nomination and appoint someone. (Funny thing was, he was a Burris supporter in early November!)
The Adam Clayton Powell case took a couple of years to work its way up to SCOTUS. I don't think the current Court will take the Burris case out of appellate order, so it will never get to the Court.
Some of the legal questions raised here were very interesting. What that means is that the ultimate result is not clear cut. That also means that time is needed to decide the issues, and time is not Burris' ally.
@kennyb: You're right. But On December 9, Blagojevich was arrested by FBI agents and charged with conspiracy to commit mail and wire fraud and with solicitation of bribery. No indictment yet, but sufficient reason for the Senate to investigate the circumstances of the current appointment.
STepper & other lawyers leaving comments:
Please tone down the legal arrogance and lecturing of Nate and commenters.
If your intention is to educate, then do so without belittling. Teachers who condescend to their students find themselves without tenure and sometimes unemployed.
Your rudeness is doing nothing to improve the public's opinion of attorneys.
Wow. I wonder how Nate likes his new a__hole.
Joe-
Lawyers argue strong points all day, then go out for drinks and shoot the breeze together. The first time you litigate, particularly if you are not just drafting but actually interacting directly with the other side, is a true eye opening experience. One can advocate strongly, and still get along.
As for Nate, he is doing fine, IMHO.
Kenny B wrote
They could have stripped him of the appointment power, though. If they didn't want a special election, they just could have given the power to themselves or Quinn, no?
The answer is NO. The legislature could have stripped the Governor of the temporary appointment power. But the 17th amendment only allows the state legislature to give the Governor the power of making a temporary appointment. The legislature can't give itself that power.
But the Legislature could have recommended a short list to the Governor so that people of Illinois could be represented by a second Senator, one free of Blago-taint.
As a lifelong Democrat it pains me to say that the Democrats in the Illinois legislature are doing a good job portraying themselves as just a bunch of partisan hacks. But I went to college at the University of Chicago so why am I not surprised?
I am very surprised at the quality of legal argument on a random blog on the internet, kudos to Nate and the commenters.
I would finally note that Nate is really just regurgitating an analysis cobbled together from many sources, some lawyers will agree with every point he made. His problem is, no two lawyers agree on every point in any case. This is normal.
The issues as I see them:
1. Does the Senate have the right to judge whether appointments, just like they have the right to judge elections?
Since the Senators were historically appointed (or "elected" if you will) by the state legislature, the word elections have much broader meaning than a vote, and include any method of selection, and some have mentioned past precedent of the Senate judging appointment, I think this, unlike most legal issues, is pretty clear--the answer is yes.
2. Assuming the Senate has the right to judge the selection of Senators by appointment, what's the standard that must be met to reject an appointment?
I really have no opinion on what the standard is (need to look at past case law if there is anything on point or even analogous). As to what the standard should be, I am a little leary of giving Congress such unrestricted authority to refuse to seat someone who has been duly appointed simply because it believes there is something corrupt about the governor making (or the appointee receiving) the appointment. This seems so elastic a standard that it would basically allow Congress to reject duly appointed Senators for reasons unrelated to fraud in the appointment for pretextual reasons.
3. What is the role of the courts in reviewing any decision by the Senate?
Here's where Powell comes into play. Seems like it stands pretty clearly for the proposition that the Congress's authority to reject members is limited to the reasons set forth in the constitution (caveat: I haven't read Powell and I'm going by what I've read about it). So, even though the constitution says Congress shall be the sole judge of elections, returns, and qualifications of members, the Court gets to decide whether or not Congress is in fact making a decision based on elections, returns and qualification as opposed to some other unconstitutional reason for rejecting a member. Just how much deference the court will give Congress is the real question. This is really the same question Fred I think astutely identified, "is it enough that some aspect of the process has been questioned by a Federal prosecutor, or does his selection of Burris himself need to be shown as tainted."
My personal, tenetive impression is that the courts will give quite substantial deference to any decision by Congress. As long as the courts don't think a rejection by Congress for fraud in the appointment process is a complete sham, then they're likely to defer to Congress's decision. So, I'd guess the courts would uphold a rejection of Burris based on the reasoning Reid gives, but it's just a guess. I could certainly see the courts going the other way and requiring Congress to find some actual fraud itself in the appointment process rather than just the "taint" of fraud resulting from the Blago indictment.
NotJamesMadison-
Hello to a fellow Maroon. LOL!
The legislature could also have stripped any ability of the gov to do an appointment (temporary or otherwise), but the problem was they did not want a special election they could have lost as that is the only other constitutional to appoint/elect a Senator.
The Illinois legislature really could not have impeached Blague so quickly. They could have stripped him of the appointment power, though. If they didn't want a special election, they just could have given the power to themselves or Quinn, no? I have to side with the Illinois Republicans on this one. The Illinois Dems totally dropped the ball.
Even the methods you suggest do not happen in a day or two. Putting aside the question of how long it would take the legislature to assemble, draft a bill, and enact it, it still does not become law until Blago either signs it, the time allotted for signing passes, or he vetos it and his veto is overriden by the legislature. With 20-20 hindsight, it's easy to say the legislature should have acted to strip Blago of his power to appoint, but there was never any way to do so before Blago could make the appointment if he was determined to do so.
Another Mike-
Great summary. Like a good lawyer, in the end, you fail to reach a definitive conclusion.
What if they did that and tried to just bottle the appointment up until Blago is gone and the new Governor can make a new appointment?
I'm not sure to what extent they can temporarily refuse to seat Burris. Seems like the moment they do not seat him after presenting his credentials, he can go to court. Refering to a committee to study seems like a de facto rejection to me.
Regardless, even if Blago is subsequently impeached, the Burris appointment does not go away anymore than any other actions Blago took while legally governor go away.
By what legal basis does Blago's appt. become automatically null and void upon his departure from office? (Presuming there's no hard evidence of corruption in selecting Burris.)
Can an Acting Governor appoint someone to the seat?
Blago wants to seen as The Great White Savior, riding in on his white horse to save the day, and make sure an AA gets to replace Obama, seems to me. Blago is quite a player, eh?
So, what if Blago temporarily steps down, and Quinn as acting governor appoints Burris?
Another Mike-
I do not know the IL law on this, but appointments can be revoked as a general rule. If Burris was already seated it would be another matter, but if he is only appointed when Quinn gets the gov chair he can likely rescind the appointment.
This is a giant mess...but it is fun.
Another Mike anticipated my question.
However, I think a case could be made that if actions that Blago took were corrupt, say, he got $1M donation to his "Foundation" from the Tribune Company, and gave them a huge tax break on the sale of stadium property, uhhhhh, I'm obviously not a lawyer, but wouldn't put into question his action on that deal, such that the deal would be reversed? By what mechanism?
Great summary. Like a good lawyer, in the end, you fail to reach a definitive conclusion.
LOL. If you thought I was being indefinite here, you should see what I would have written to a client if I were advising on this stuff!
Seriously though, people criticize lawyers for not being definite enough (I know you weren't), but the truth is that there's a lot of gray in these issues and very smart, highly educated, thoroughly prepared people can, and do, disagree all the time. And, that's the way it has to be because no one can possibly write specific, concrete laws ahead of time to unambiguously cover every imaginable situation.
Oh, and Nate should keep blogging on legal stuff and is doing a fine job about it.
Green-
It is unlikely the deal could be reversed unless there was a clear quid pro quo. Blago seems dumb enough to have some of those but in general, courts and the legislture do not go back and ask for the money back.
I do not know the IL law on this, but appointments can be revoked as a general rule. If Burris was already seated it would be another matter, but if he is only appointed when Quinn gets the gov chair he can likely rescind the appointment.
Seems like an appointment to be Senator is unlike a presidential or other appointments that require the confirmation of the legislature. Seems more analogous to a pardon where once it has been made, then there's no taking it back. But, hey, I could be wrong.
Another Mike-
I agree completely and was just giving you crap. As outside counsel I loved the wiggle room, as in house counsel I hate it as the business needs definitive advice and true knowledge of risk.
Someone said the only problem with the law is that it must be written down, as there is no way a written document can cover every possible set of circumstances.
Look at this debacle, who could assume these facts?
That said, every state should now pass laws giving their gov the ability to appoint a temp placeholder who is replaced by special election.
Another Mike-
Who knows, you might be right, but the IL legislature sure seems to think it can be revoked.
As for a pardon being irrevocable, several have been revoked or even revoked and reinstated. I was looking into the Toussie pardon, just for fun, and stumbled on a great site:
www.pardonpower.com
See post: http://pardonpower.com/2008/12/talking-points-memo-clarification.html#links
To reinforce what some others have said, the legal analysis here is enjoyable and instructive.
It also needs to be augmented, however, by the more political ones, including the ideological predelictions and motives of the various actors involved, which are likely to be at least as important in determining (a) what the Senate does and (b) what the Court does.
In the meantime, stuff like this keeps lawyers busy on their vacation days. What we need now is more fodder for the economists and political scientists. What's up with that Congressional roll call analysis, Nate?
Thanks for the correction, NotJamesMadison. I guess I'd better bone up on my 17th Amendment reading!
It certainly appears as though Franken is allowing Coleman to cherry pick ballots. If this is true, Franken will almost certainly give Coleman the lead at final certification. The lead at certification means a lot, it probably means everything, as the onus of proof for any challenge is always the put upon the loser.
With a margin of just 50 votes, I do not for a minute believe the Franken camp is stupid enough to allow Coleman to gain a single vote through cherry picking the absentee ballots.
Clearly, the most logical course of action for the Franken camp to take would have been to shut down the counting the moment Coleman started cherry picking, effectively locking in Franken's 50 vote lead.
So why is the Franken camp seemingly letting Coleman cherry pick ballots when allowing such gaming will almost certainly result in Coleman being certified the winner? I don't for a minute think the Franken camp is that stupid, so I've a few guesses:
A. Perhaps the rules allow Franken another opportunity to reject ballots prior to them being opened and counted? If this is the case, then Franken is simply giving Coleman enough rope to hang himself. Franken would do this to acquire ample evidence that Coleman has violated the court's ruling and is rejecting ballots on purely partisan grounds.
After the rejection phase and prior to the ballots being opened, Franken would petition the MN Supreme Court to rule on Coleman's unlawful and partisan rejections. Franken would likely request that the court appoint independent observers (the Canvassing board?) to decide the validity of each ballot. If such a petition were rejected, Franken would then object to any of the absentee ballots being opened, locking in Franken's victory margin at the current 50 votes.
B. If the rules don't allow Franken another opportunity to object to the opening of ballots he has previously approved, it would suggest Franken is not at all confident about post-certification challenges. This could indicate that Franken is taking a huge, but calculated risk that the MN Supreme Court will strongly disapprove of Coleman's cherry picking.
I believe Franken would only dare take such a chance if his side truly felt a 50 vote lead wouldn't carry them past post-certification challenges. An independent counting of the fifth pile absentee ballots would probably bring Franken a many hundred vote lead.
C. The most unlikely possibility, but still possible is that Franken's camp is gullibly allowing Coleman to cherry pick ballots because Franken won't stoop to Coleman's tactics. If this is the case, Franken has been unbelievably stupid and truly risks losing.
If Coleman's cherry picking isn't disallowed by the court or checked by Franken, things aren't just bad for Franken, they're much, much worse than most suggest. The reason is that both Coleman and Franken's people have long known the actual names on the wrongfully rejected absentee voters.
Both sides have probably performed investigations on each and every name, trying to suss out the vote of each and every one of those voters. A lot of this could be done with a simple phone call to the voter asking how they voted. If the voter refused, knowing their exact name and exact address would give any good researcher a very high level of confidence of the voting habits of that particular person. Were they registered Democrats or Republicans? etc...
All that said, I cannot imagine the MN Supreme Court would be at all happy to hear that such a list had been Coleman's primary seive in the culling of ballots. Were one of Coleman's rejectors asked by the court (under penalty of perjury) if such a list existed and was used to cull voters, I can't imagine that Coleman's rejector (probably a lawyer) would risk disbarment and lie to the court.
Perhaps that's what Franken is counting on.
Nate is simply making the all too common mistake of thinking because he's good at one thing that requires some skill or intellectual ability, he's good at ALL things that require said abilities. Your next door neighbor makes this mistake, as do Nobel prize winners in physics, as does Joe the Plumber......
Sorry, ignore the above, cross posted by mistake.
I can't seem to find any way for OpenID accounts to delete posts.
Cugel: Are you related to, or possibly the same as, the noted Cugel the Clever, as per Jack Vance?
@ 1sunnyday, sorry for not ignoring your post, but why do you think Franken is allowing Coleman to cherry pick? I understood that to be the case.
@toolstar: you are making the simple-minded mistake of assuming that because Nate is good with numbers he isn't as qualified to write in any other areas. Do you have anything useful to add to this site, or are you just trolling by?
I am a lawyer -- a Professor of Constitutional Law, in fact. I refused to comment earlier because the thread seemed too expansive. But I have participated in a very lively debate on ConLawProf (a constitutional law listserv). The vast majority of commenters believe that Reid lacks the authority to block Burriss from taking office.
The "tainted" with fraud argument is pretty bogus, since all they are working with is a criminal complaint. No trial has taken place; the Illinois Supreme Court refused to declare Blago incompetent, and he has not been impeached. Accordingly, he is lawfully the governor of Illinois and, consistent the with the methodology stated in the 17th Amendment and approved by the Illinois legislature, he has picked Obama's successor.
Finding a selection "tainted" by fraud is a very loose standard, which would give Congress almost unbridled power to exclude individuals. It is even more dangerous because Reid and company threatened to block the appointment a long time ago; if they actually applied a process first and then reached the decision first, their argument would have more credibility. Instead, they reached the decision and came up with the justification later. Reid's position places Democratic politics above individual rights, and any true progressive would gladly reject it.
If people who are claiming to be Lawyers don't have years of experience defending civil rights before SCOTUS, or have a degree in constitutional law, they aren't any more qualified to interpret this case than Nate, in fact I would guess that those so called Lawyers are just a bunch of paper pushers. Constitutional procedures are more intricate than filling papers for a mortgage closing, or divorce proceedings. So please all you private sector, corporate bureaucrats please refrain from attacking Nate, it doesn't compensate for your general inadequacy it displays it.
Nate's initial post wasn't bad, given that he's NOT a lawyer, he's NOT an expert on Constitutional law, and he HADN'T spent hours arguing with other lawyers about the details of this mess. He should ignore the advice to "butt out"; he wrote a flawed first draft, but the community here rapidly corrected and polished it. The discussion here was at a very high level - much better than I've seen elsewhere.
Having read through the posts, I find myself agreeing that the Senate has grounds to investigate by referring it to committee, that the courts are unlikely to accept jurisdiction during the pendency of a reasonable investigation, and that if the Senate has not formally accepted the appointment by the time Blago's plug gets pulled that the new Governor can rescind the appointment.
In addition to the many very well-presented points that have already been made, we should acknowledge the doctrine that the courts desperately try to avoid deciding "political questions", especially those which are not fully "ripe". They won't need to defer the decision four years - as they did in Powell, for this situation to resolve itself.
(For non-lawyers who may wonder how the political question doctrine can be squared with Gore v. Bush, a lot of lawyers wonder too.)
I have taught constitutional law for 11 years -- and graduated from law school 15 years ago. Nate made some pretty solid arguments. I am sure he read a lot of the analysis around the web.
Constitutional law is less technical and more argumentative and historically based than other areas. Having a sharp mind and and deep logic is 1/2 the story behind good constitutional lawyering. So kudos to Nate for a sound analysis.
Having said that, most seasoned constitutional law scholars that I have seen comment on this issue believe that Reid lacks the authority he claims to have. Certainly, if Reid thought it were beyond debate, he would not have released the statement. But he probably saw that most experts in the field believe he is abusing his own office by threatening to exclude Burriss.
Finally, I will repeat an observation from my earlier post: This type of behavior threatens individual rights, and true progressives should forcefully reject it. Imagine some partisan GOP attack on a vacancy appointment -- where the Democratic governor - though in the middle of controversy -- remained lawfully in office, was not convicted of a crime, impeachment proceedings had not advanced at all, and efforts to have him declared incompetent failed in the state supreme court. Most of us would resist efforts to exclude the nominee. But because Obama and Reid support exclusion, a lot of people are placing party politics ahead of due process and individual rights. To me, that is shameful. The presumption of innocence should not evaporate because Democratic leaders want to discard it.
@Darren Lenard Hutchinson
You're probably right about the substance, but this may be a situation where procedure solves all the problems. Why would the SC take it up immediately, if the Senate appears to be conducting a "regular" investigation of a credible allegation? Wouldn't you agree that if it were eventually shown that Burris purchased his appointment - I'm not claiming they DO show that, only that they MIGHT - the Senate would have the power to reject the appointment as irregular? If such a ground would be sufficient, then certainly an expeditious investigation of the appointment would be permitted.
That approach, using short-term procedure to get around an impossible long-term substantive problem, answers a lot of needs. For one thing, it doesn't hinder future court review, nor does it undermine the Senate's autonomy. It protects everybody's rights, except Blago and Burris, neither of whom are on very firm footing anyway.
wv: "elect" - can that really be a random collection of letters?
The only ground that the Senate has for making that claim is the prosecutor's filing of charges against Blagojevich. This cannot taint the entire selection process; otherwise, partisans could merely make allegations against opponents and derail a selection.
Second, I am very happy that I teach remedies as well as constitutional law. A lot of people forget that courts have ways of blocking action pending decisionmaking. The Court could enjoin Reid from excluding Burriss on the grounds that Burriss will likely succeed on the merits of his claim (that an exlusion would violate the constitution) or because excluding him based on an inchoate investigation without any evidence of wrongdoing at all is too injurious. There is no reason to believe that Burriss himself was involved in fraud. In fact, he was apparently the second-choice candidate. Are we to assume that the first choice engaged in fraud too?
The whole "tainted" argument gives far too much power to the prosecutor. Add to that the facts that the Illinois Supreme Court refused to find Blago incompetent to act as governor and that he has not been impeached or convicted and I am convinced that Reid is just wrong.
Whether a court would allow an investigation to take place first is a good point, but I do not think it precludes Burriss from taking office. WE shall see.
PS: "Why would the SC take it up immediately" is a risky position. Think: Bush v Gore! Most people were surprised by that decision.
Mark -- why do you say that Burriss is not on "firm footing"? This is exactly the "guilt before trial" sentiment that I find repulsive. Besides the ALLEGATIONS of wrongdoing center upon Blagojevich, not Burriss. And if we can deem Obama, Jesse Jackson, Jr. and others implicated in the scam innocent without any procedure whatsoever, why should we insist upon condemning Burriss?
@ Darren Lenard Hutchinson
When I said he wasn't on a firm footing, I was shifting from my pseudo-profession (law) to my real vocation (politics). His legal position may be solid on paper, but being a genuine laughingstock doesn't help a person's odds in the real world.
Your analysis of the short-term situation may be correct, but I think you overestimate the judicial appetite for intervention in the Senate's affairs. I can't imagine any court, even our Supremes, enjoining the US Senate over this situation. I'm not arguing they lack the power, but I just don't think they'd do it.
Why? If I may update Finley Peter Dunne's observation that "the Supreme Court follows the election returns", now they watch Jon Stewart. As I said, being a laughingstock weighs in the balance.
Burris would have to be beyond stupid to have "paid-to-play" in this super-scrutinized situation.I think we can safely assume he's clean.
Which once again compels me to scream "Why are the Democrats (mainly White and and Reid) drawing this out and giving the Republicans a gift.Certify and seat Burris on Jan.6 and end this."
Great posts Mr. Professor. Glad we agree, right down to defending Nate.
Opus - I fully agree, get Burris to agree not to run in 2010 and then just seat him and lets move on. He will be a lame duck before it starts, problem solved.
@Opus 132
You are certainly correct that Burris didn't pay anything - at this point any contact with Blago might as well be conducted at a press conference, since it's certainly being surveilled by one means or another. Not just listening devices, but watching financial transactions, physical movements, maybe even his mail. I imagine the Guv's only question was "Would you accept the appointment?" and Blagojevich had gone pretty far down the list of has-beens before he called Burris.
But once the appointment process is tainted, it's ALL tainted. At least, that's the way most people, and probably most courts, would view it. An interesting way to view it is negatively: other people may not have been appointed in order to advance Blago's interests. So Illinois gets represented by the only person willing to accept the loot from the fleeing criminal. That's harsh, but it's not false.
@Opus132:
You keep repeating that seating Burris will end the controversy. I beg to differ. As long as Blago is under investigation by Fitzgerald and/or under threat of impeachment by the IL state legislature, his nominee to the Senate will be a target of opportunity for the Repugs and a source of embarrassment to the Democrats.
@ polls_apart
I guess we just disagree on this.
I believe that the Republicans will preach to the converted about this,the Democrats will tune out and the remainder of the public,with its modern-day miniscule attention span,will lose interest as soon as the media turns its attention,as it should,to Obama's program and the congressional fight over it.
I also believe it will carry zero weight in the 2010 elections.
his nominee to the Senate will be a target of opportunity for the Repugs and a source of embarrassment to the Democrats.
What I'm embarrassed about is the public and inept doomed-to-failure maneuvering by White and Reid.By trying to throw Burris under the bus,they are giving the Republicans the very opportunity you rightfully fear.
Mark - I encourage you to read my work on the Supreme Court and majoritarian politics. I am versed in the political science literature which finds that the Supreme Court follows, rather than shapes, public opinion. This is true for the most part. But public opinion on this issue is difficult to ascertain. How do you frame the question? Whom do you ask? Is this one of those moments where public sentiment is close enough or confused enough that the Court has latitude? The Court invalidated the line-item veto, even though Congress and the President wanted it. The Court intervened in Bush v Gore. The Court has struck down school prayer. It invalidated flag-burning statutes. It is majoritarian on the whole - not exclusively.
Darren - It's precisely when things are muddled that judicial abstention proves wisest. Events are occurring at a faster pace than the courts can track, and any action is likely to be overtaken. When the courts are forced to act in circumstances that make them squeamish, their first instinct is to stall and see if the situation resolves itself or at least clarifies.
In this case, two months of calm reflection is likely to solve everything, without creating new problems or risking (what's left of) the Court's respectability.
Fortunately, this argument will itself be resolved by events. One of us will be wrong when we look back a few months hence. Maybe both of us.
Mark said: "But once the appointment process is tainted, it's ALL tainted. At least, that's the way most people, and probably most courts, would view it."
What leads you to this conclusion? Courts conduct trials everyday in which defendants are "tainted" by accusations of prosecutors alone. They still conduct the trials because the constitution mandates that we assume innocence.
Your argument employs the same totalitarian logic that the Bush administration exercised to justify its Kangaroo-court justice for accused "terrorists." They must be guilty of "something" because they are anti-American, Arab, Muslim, etc. The Court, however, has required more proof - even though a majority of the public supported racial profiling and is quick to believe in the guilt of Arab Muslims -- and even though the administration grounded its claims in national security and war power, areas from which the Court has historically remained aloof.
I think you assume that the public would disfavor court intervention and that courts would simply follow public opinion. But a stronger argument might contend that the conservative justices want to keep Blago in power to embarrass Democrats and to go against the wishes of Obama and Reid.
Furthermore, this case involves federalism concerns, something conservatives have strongly supported. The constitution allows states to fill in vacancies, and the Illinois process is functioning. Blago has not been impeached, and the Illinois Supreme Court has declined to declare him incompetent to govern. Also, all we have in terms of criminal activity is the prosecutor's complaint. To find the entire process "tainted" based on a prosecutor's allegations is such a deprivation of due process that a court could easily intervene. I do not know your political ideology, but I am stunned at how readily liberals are willing to discard the presumption of innocence. Court TV is not reality!
Mark said: "It's precisely when things are muddled that judicial abstention proves wisest."
Why? So that Reid, who has already declared the process as tainted without any trial, can "discover" the facts? Sorry - but that is just a stalling tactic to support the denial of due process.
The prosecutor apparently acted rapidly to prevent Blago from doing exactly what he has done: name a replacement. If the case against Blago were so strong, why isn't it proceeding? Why is he trying to ban material witnesses from testifying before the impeachment panel?
Just about every "candidate" for the slot has denied engaging in any "negotiations" with the governor, and people are willing to accept this -- especially as it involves Obama. In fact, the prosecutor has basically said that Obama is not centered in the complaint. If this is true, then Blago could not have conspired to "sell" the seat. If no one engaged in inappropriate conversations with him, then his statements are simply moments of bravado. Either people talked to him inappropriately or not.
But the prosecutor does not want these people to testify to state authorities. How convenient. How is Reid going to conduct a fact-finding mission without these witnesses?
DARREN
well said. amazing how the presumption of innocence is so readily sacrificed...
yet another sad vestige of the Bush/Cheney years of shame as they trampled on civil liberties using their presumptive HOMELAND security trump card rationale
as you point out, it is sad to watch progressives continue to fall into this neo-con 'taint' trap
Thanks DCM in FL. Apparently, Democrats are center-leaning conservatives. To declare an entire selections process invalid because a prosecutor filed a criminal complaint is preposterous. I have very little faith in the ability of Democrats to "clean up" violations of procedural due process. If this is any indication, we are stuck with business as usual -- and politics above liberty. But I never expected much in the first place.
DARREN
I agree. Tragic when your expectations have to be set so low...
but with Reid in control of the senate - well that alone speaks volumes about the DEM caucus
Obama campaigned on REAL CHANGE WE CAN BELIEVE IN
with his 'safe' nominations to date, I am waiting to see where the real change is going to come from... looks alot like more 'politics as usual' so far imho
especially the entire Warren choice
BTW - I just scanned your blog 'DISSENTING JUSTICE'
very interesting read & analysis/opinions - kudos
Happy New Year, let's hope for the best & not just more of the same...
The Powell case involved a person who was elected by his constituents even after the scandal had broken, and was already a member of the house. Both of these instances were of concern to the Supreme Court.
The main ruling is that you couldn't simply refuse to give an oath to an already sitting member because that really did add new qualifications. They felt that since Powell was already a member, the House would have to expel him by 2/3rds vote. There was a feeling that the House was taking the non-seating option because it wouldn't be able to get the 2/3 vote necessary for expulsion.
I believe another issue not explicitly expressed by the court is the right of the people in Powell's district to choose their own representative. I can imagine a situation where a party line vote taking place whether a member of the minority party can be seated.
Believe it or not, this was actually discussed by a few Republican house members back in the late 1990s and early 2000 as a way to keep the permanent Republican majority. After all, if each house of Congress can determine who it can seat, why not?
The truth is that this whole debate is probably mute. Burris will not take the seat. If Burris was seated, he would get no committee assignments and no one would have anything to do with him. He'd be an nonentity in the Senate. In 2010 (just around the corner) he'd lose the Democratic nomination.
Plus, the Senate has the 2/3 vote it would take to expel him.
Darren - I think we've pretty well plumbed the depths of this question, and we'll have to wait for Time and Fate to weigh which of us is right. Which verdict I expect within a couple of months at the latest.
In the meantime, I would like to offer an amusing image: Guy ("Blago") comes running out of a bank with a bag of money. Uniformed folks yell, "Stop! Grab him!" Guy offers his bag of money to one person then another, and finally a person well call "Mr. Burris" accepts it.
What exactly are Mr. Burris's property rights? He's heard accusations, but his benefactor hasn't been formally charged. Mr. Burris didn't promise anything. People leave banks with bags of money all the time, although not usually running from pursuit. Mr. Burris makes no attempt to conceal the hand-off, or escape from the scente. And Mr. Burris doesn't claim the money is "his", only that his property rights are superior to - say - yours and mine. Who can say for sure it belongs to the bank? Couldn't it have been taken from someone else? Maybe it was taken by force from someone with whom Blago had a legitimate dispute whom he was meeting at the bank? How can Mr. Burris know - he only knows that he was handed the bag and did nothing wrong.
Of course, this analogy has all sorts of flaws. But please consider the image of calm Mr. Burris, holding Blago's loot, and hoping that due process will let him hang onto it for a while. Guy in that situation shouldn't be surprised to spend some time in cuffs and/or a cell. In Chicago, he'll be lucky if he doesn't get banged up falling down a couple flights of stairs or something. And all the search and seizure precedents in the world aren't going to change that.
Just one thought people (including Nate) keep on missing: Since it looks like it might be a long while until MN gets resolved, isn't it GOOD for the Dems to leave IL unresolved? With only 98 seated, cloture requires 59 votes. Once 99 are seated, cloture requires 60 votes. Thus, as long as MN is up in the air, the Dems can ONLY lose from seating another senator - even a Dem that votes with party 99% of the time is still a potential net 1% loss.
Question from Darren: "How is Reid going to conduct a fact-finding mission without these witnesses?"
Answer: "S-L-O-W-L-Y".
DAVID
Ted Stevens would have been re-seated in the Senate if he had managed to pull out the win in AK
and he had multiple felony convictions for graft 'tainting' him
so how can the senate refuse to seat Burris ???
now IF Blago had appointed himself or his wife - then the senate maybe could refuse to seat him
but remember, in AK GOPer Murkowski recently appointed his DAUGHTER to fill his own vacated senate seat - why was nepotism allowed by the GOP run senate at that time ? that rightly smelled like 'taint' to everyone then
Burris has done nothing wrong in accepting this legal appointment made in a timely manner
he should get the benefit of the doubt even though a special election should have been called perhaps
but the logical conclusion is to seat him forthwith & allow Burris to step down in 2 years [or face election at the polls]
OR perhaps Burris would do the right thing & resign his seat before 2010 if/when Blago is found guilty or resigns
then the current Lt Gov could make another appointment - now THAT sounds like a reasonable resolution.
Burris is seated & holds the seat as a caretaker until either 2010 or he resigns if/when Blago is replaced
in the meantime, IL has it's full & proper representation in the senate
WV -atica [Elliot Sptizer wanted to avoid a NY vacation at...]
It's funny no one has brought up the appointment process in Wyoming in connection with how the IL Leg didn't do all they could to avoid this.
The Wyoming Legislature submits three names to the Governor whom he or she can appoint in the case of a vacancy. The constitutionality of that is questionable IMO, but that's the law and they used it just last year.
If the IL Legislature passed a similar law, they could have avoided part of this mess.
DAVID
in Wyoming I believe the appointment process is even more bizarre than you stated above
to make sure the vacant senate seat remains in the hands of the same party, the state law requires the the sitting governor [who is currently a DEM] must make the appointment from a list of 3 finalist candidates submitted by the state PARTY officials that the last senator belonged to [in the current case, the GOP] rather than the state legislature.
that is a weird cowboy way to make an appointment imho
but better than Blago selling the seat [although the state party could also just nominate the highest bidders as well - politics as usual]
First, I am NOT an attorney, just someone interested in history, politics, and the legal cases that go along with those subjects.
With at least four current SC justices who 'preach' 'original intent', here are a series of questions I have at the current time:
Until the 17th Amendment, how were vacancies handled by the various states - appointment by the governor, legislative vote, or other means?
Would those appointments not have fit the definition of Article 1, Section 5 for 'Elections, Returns and Qualifications' of the appointed Senator? I can see a legislative vote as being viewed in the Article 1, Section 5 sense, as that is how ALL Senators were chosen for full terms until passage of Amendment XVII. Were they (if anyone knows), and were the other method(s) (appointment by governor and/or ???) considered differently?
Did the 17th Amendment alter any of the 'Elections and Returns' portion of Article 1, Section 5's 'Elections, Returns and Qualifications', or just the means of election by the citizenry, not the legislature, to a full term?
If the 17th Amendment altered any portion of Article 1, Section 5 beyond the means of election (whether intentional or not)
- Would the current 'original intent' justices argue that it did or didn't; and
- How do you think this possibility could affect the thinking and deliberations of the 'original intentists' of today's SC? Would they be likely to think of the appointment by the governor be an 'election and/or return' as envisioned by the Framers, or not?
Mark, I am not predicting "what" will happen. That's not what con law scholars do. I am telling you what my gut says about the law, primarily, and what the court could possibly do, secondarily. Ultimately, I agree with the sentiment that a political solution will happen -- with or without judicial involvement. If the Court rules for Burriss, this obviously gives him a lot of leverage; if it rules for Reid, then all of this becomes moot. I resist the notions, however, that Powell is materially distinct from this case and the a court would necessarily run from the conflict.
One additional point. Why on earth didn't Illinois simply pass a law divesting the governor of the power to make the selection? The 17th amendment leaves it up to states whether to call a special election or to have the governor make the choice. Illinois law gives the role to the governor, but the constitution does not mandate this procedure.
It is too late to do this now, without creating a bigger mess. But rather than pursuing the exceedingly undemocratic and ill-fated option of having the Illinois Supreme Court declare Blagojevich incompetent to serve, the legislature could have passed a law changing the way the state fills Senate vacancies. Perhaps, lawmakers believed they could not defeat a veto, but if this is the case, then impeachment does not seem inevitable, as the media suggest.
DARREN-
Loving your posts. The IL folks did not strip Blago of the power because they thought he wouldn't use it, and the dems were afraid they would lose the seat. They could have defeated a veto.
The Lt Gov (Quinn) was very likely to pick whomever Obama wanted.
As for you writings, I am a lawyer and agree completely. Most holdings are who the judge thinks should win, and the legal analysis comes second.
What happens when the Supreme Court is constituted of people who have a completely different world view than society at large? Such as now...?
Burris sues to force SoS to sign appointment.
http://www.chicagobreakingnews.com/2008/12/burris-takes-senate-appointment-to-supreme-court.html
In the interest of balance, Amar and Chafetz have written a "brief" for Reid: http://www.slate.com/id/2207754/. Actually, it's not a brief, but I could see it as a section of a brief....
The key, unanswered issues seem to be:
1) Does an appointment come under the Senate's power to judge elections and returns
2) If the answer to #1 is "yes", how much deference must be given to the Senate when it finds that an election or return is invalid
In regards to number two, as argued by Amar and Chafetz(*), greater Senatorial deference might be given for an appointment than an election.
(*) It appears they are attempting to distinguish McCormick when no distinction is needed because McCormick was confined to judging qualifications.
Mike in Maryland wrote:
Until the 17th Amendment, how were vacancies handled by the various states - appointment by the governor, legislative vote, or other means?
Here is the relevant text of the original vacancy clause of Article I, section 3, now superseded by the 17th amendment,
“if vacancies happen by resignation, or otherwise, during the recess of the legislature of any state, the executive thereof may make temporary appointments until the next meeting of the legislature, which shall then fill such vacancies.”
That’s pretty straightforward, isn’t it?
More generally, readers of 538.com interested in constitutional questions like this one should go to the original sources themselves: the constitution and the supreme court cases, in this case Powell v. McCormack. You can always start by looking for the case in Wikipedia or some other digest, but don’t always trust that source. Go to the original and try to understand it as best you can. (Note: I once read a Wikipedia article on an 1867 case which said that Chief Justice Taney was in the minority. He wasn’t. He had died 3 years earlier.)
The mother tongue wasn't born yesterday
Actually, reading "election" in this Constitutional provision as referring to any process of selection is not at all strained. Only recently has the word "election" obtained the exclusively narrow meaning of "selection by popular vote". The word "election" started out meaning what we would say "selection" means today. Shakespeare uses "election" where we would use "selection". By the time of the Founders, the word had clearly acquired the narrower meaning as one definition, but just the context of its use in I,5 tells us it still has a broader sense. The full passage refers to "each House" being the "judge of the elections, returns and qualifications of its members". Since the Senate was not at that time filled by popular election, elections in the wider sense of "selection for office by any means" must have been meant by the use of the word "elections" to apply to the Senate.
Powell v McCormack, though often cited in discussion of the Senate's options in this case, really isn't relevant. There was absolutely no question about Powell's re-election. The whole question was the House's ability to invent the new qualification of good moral character for election to the House. Of course it couldn't, because of course the whole exercise was simply an evasion of the need for the 2/3 vote it would have needed to expel Powell for his ethical lapses by pretending this was a question of the legitimacy of his election, which would only tak a majority vote. In this case, Burris' character is nt in quesion, the character of the election process that got him his appointment is. There is expulsion as the legitimate alternate process to deal with any character flaws that any member may have or manifest, but there is no alternative to the exercise of the Senate's duty to be the judge of elections to its membership for dealing with the flaws in Burris' selection process. They have to deal with such flaws before they seat him, because there is no way to revisit that issue later.
Juristheidiot: you're making the mistake of calling people names for the horrible sin of pointing out the obvious. Nate's a good statistical technician (but if you looked into things OBJECTIVELY, you'd know he did no better than pollster.com, realclearpolitics.com or PEC during the last election, and worse than some on the popular vote, but hey, don't let FACTS cloud your simple mind), but he's yet to show he knows much of anything about constitutional law (he does what everyone who love to argue does: he cherry pics from OTHER people's opinions on the web). You, probably do the same thing when discussing particle physics with your physicist neighbor. And you prob'ly also think you know what you're talking about. (i'm not a particle physicist by the way, but my Speaker to Animals can communicate with them). As I said, it's a common mistake; one that REALLY smart people (those who KNOW what they DO NOT know) tend not to make, so much.
Insult me again, and we'll fill up this discussion. (the astute reader will note who started throwing the insults first). But hey, you probably have nothing better to do on New Year's.
This whole Blago thing is so monumentally unimportant. Along with Warren it's scoring a 3 on a scale of 100 in the national consciousness. These people are such chickenshit Blago, Burris, Busby or whatever his name is. Everyone can see it and they have more important things to think about.
There are two other legal concepts looming in this situation. First, there is the case Nixon v US. In that case, the Senate impeached a federal judge who accepted a bribe to dismiss a criminal case. Nixon argued that the Senate failed to comply with the "impeachment trial clause" which provides that the Senate has the sole power to "try" impeachments. Judge Nixon argued that because a Senate committee conducted the fact-finding, evidence collection, hearing of testimony, etc., the "Senate" did not try him as mandated by the constitution.
The Court held that the procedure the Senate uses to conduct the impeachment process presents a "political question," and it refused to reach the merits of Nixon's arguments. Well, sort of. A long part of the ruling seeks to demonstrate that the word "try" implies many different types of procedures and that the Senate process fell within this flexible framework. So the Court seemingly answered the question without answering the question.
What does this have to do with Burris? Souter has an interesting concurrence that raises a hypothetical in which the Senate impeached under circumstances that blatantly violated due process -- such as a "coin toss." Souter suggests that the Court could intervene in that instance.
So, even if the Senate has the authority to "review" the selection/election process, the question then turns to what standards should the Senate use, how deferential should the Court operate in the process, and is there a line that the Senate could cross that warrants judicial invalidation (such as a pre-announced decision that ANY candidate chosen by the governor is unacceptable).
The second issue concerns federalism. Both Article I and the Seventeenth Amemdment delegate the election of members of Congress and the filling of vacancies to state governments. The Seventeenth Amendment gives states the option of having a special election or allowing the governor to make the selection to fill a Senate vacancy. Illinois has chosen the latter route.
Democrats refused to strip the governor of the power to make the appointment because they feared that a Republican could win the special election. They also knew they could not rush through an impeachment so they pursued the awful route of seeking a judicial invalidation of Blagojevich's office. When that failed, they now say they will rush through the impeachment process -- even though the prosecutor has asked the panel not to subpeona Obama administration officials, who are presumably "material witnesses" to the governor's defense and the allged "crime." In a move that resembles "Bush's due process," Democrats are leaning towards complying with the prosecutor's request. Cynically, Republicans want the opportunity to embarrass (ooops, question) Obama's staff.
As messy as it is, the state process is playing out. The governor has not been convicted of a crime; the Illinois courts refused to declare him incompetent; the legislature did not strip him of the power to pick Obama's successor; the impeachment process is in an embryonic form; and the prosecutor has asked for three additional months to build a case. Why on Earth should the Senate veto the governor when the constitution gives the state the sole authority to make the selection?
If the Senate intervenes, it will play the role of the Supreme Court in Bush v Gore. The Court appropriated Florida's constitutional and legislative authority over the recounts by enjoining them from taking place -- even under a uniform standard. Here, the Senate has basically said that nothing involving the governor is acceptable; accordingly, it is mandating a special election -- something the constitution does not give the Senate the authority to do.
[sorry about the length; I got carried away and lacked the time to condense my argument]
Bravo! Encore Maestro!!
Nate, considering making this is new post (with permission of course) and, of course, crediting the professor.
Am completely humbled by the quality of the legal analysis here, especially Mssrs. Hutchinson and Grebner, both well known and highly accomplished in their fields.
Am struck by Mr. Hutchinson's point about assuming that there is something untoward or illegal that's occurred between Blago and Mr. Burris. We've seen no evidence of that whatsoever.
I'm also reminded, in a sort of related way, to the just prior to an election restrictions that are placed on US Attorney and other prosecuters, perhaps, to NOT file indictments/charges against candidates for election without OVERWHELMING evidence, as the mere filing of such will damage the candidate's reputation and possibly cause him/her to lose of the basis of ALLEGATIONS only, and that the finding of fact cannot even be properly done until long after the election is over, yet the candidate may have been irreparably harmed by losing the election.
(This then, tangentially, blew up into the "wrongly" fired AG scandal, Monica Goodling etc., as one of the issues was that some AGs were not being aggressive enough at going after Democratic politicians.)
So here, we have another election to be decided, in this case, by the Governor of IL. Blago's just about to make that (s)election, when all of sudden here comes Fitzgerald with these charges, but they haven't even been vetted by a Grand Jury or formal indictment yet, and Fitzgerald just requested and received another 90 days to indict.
I'm sensing that Mr. Hutchinson has serious doubts as to the strength and validity of Fitzgerald's case in general, at least to the extent it has been revealed. And again, nothing has been even been alleged, AFAICT, of any thing illegal between Blago and Mr. Burris.
The political world, and the court of public opinion, may very well judge that Blago, based on the evidence that has been released, is a filthy mouthed money grubber who tried to sell the seat to the highest bidder, and is therefore not qualified to make the pick for this election.
But from a strictly legal point of view, whether in Federal Court, or in the Senate (probably before the Judiciary Committee) you have to be very careful about paying attention to due process and presuming innocence.
It turns out the scheme I've described has already been employed under somewhat similar circumstances. From Wikipedia:
[Theodore Bilbo] was re-elected to a third Senate term in November 1946, but the newly-elected Republican majority in the United States Senate refused to seat Bilbo for the term because he was suspected of openly inciting violence against blacks who wanted to vote and a committee found that he had taken bribes. A filibuster by his supporters delayed the seating of the Senate for days. It was resolved when a supporter proposed that Bilbo's credentials remain on the table while he returned home to Mississippi to seek medical treatment for his oral cancer. [The standoff was finally ended by Bilbo's death, August 21, 1947.]
Of course, there's nothing to say a different result might not have been obtained if Bilbo had sought a judicial remedy. But I don't see any important distinction between the two situations as far as Senate rules and procedure.
@Darren: "Finding a selection "tainted" by fraud is a very loose standard, which would give Congress almost unbridled power to exclude individuals"
I think you are underestimating the strength of the words "sole judge" in the clause. The court, to be sure, would want to make sure that the Senate is in good faith making a judgment about the validity of the "Election" (as opposed to a transparent pretense), but, if that is what the Senate is doing, it is entirely up to the Senate how much "taint" is enough.
I read a quote somewhere saying "The Supreme Court would rather drink molten lead than issue another opinion like Bush v. Gore". We should remember that the justices in the Bore v. Gush case were strongly motivated by a desire to influence the appointment of their successors or future colleagues, a factor not present here; I think their motivation would be strongly in favor of any excuse not to intervene.
Also, the whole "presumption of innocence" is out of place. That presumption applies to jurors or judges who are deciding whether to deprive you of your life, liberty, or property. Burris doesn't have a "right" to the Senate seat; he is not being deprived of anything if he is not seated.
wv: entili. As we can see, even constitutional scholars don't find this case entili clear.
@ Bob X
Burris doesn't have a "right" to the Senate seat; he is not being deprived of anything if he is not seated.
Strongly disagree!
He appears to have been legally appointed with no malfeasance involved by anybody and so definitely has a right to the seat.
情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣,情趣,情趣,情趣,情趣,情趣,情趣,情趣,情趣,情趣,情趣,情趣,情趣,情趣,情趣,情趣,情趣,情趣,情趣,情趣,情趣,情趣,情趣,情趣,情趣,情趣,情趣,情趣,情趣,情趣,情趣,情趣,情趣,情趣,情趣,情趣,情趣,情趣,情趣,情趣,情趣,潤滑液,自慰套,威而柔,威而柔,威而柔,威而柔,自慰套,跳蛋,按摩棒,充氣娃娃,自慰套,潤滑液,威而柔,FleshLight,跳蛋,按摩棒,充氣娃娃,跳蛋,按摩棒,FleshLight,充氣娃娃,情趣商品,情趣網站,情趣網站,潤滑液,性感內衣,充氣娃娃,按摩棒,情趣精品,跳蛋,情趣網站,情趣商品,跳蛋,FleshLight,充氣娃娃,情趣內衣,情趣精品,按摩棒,威而柔,自慰套,成人玩具,Nexus,lelo,聰明球,後庭,後庭g點,g點,美國fleshlight,STU訓練大師,Fleshgirls,Toys Heart,Tenga,日本 Vibratex,日本Toys Heart ,日本Tenga,美國aneros,rudeboy,英國rudeboy,英國Rocksoff,德國Fun Factory,Fun Factory,英國甜筒造型按摩座,甜筒造型按摩座,英國Rock Chic ,瑞典 Lelo ,英國Emotional Bliss,英國 E.B,荷蘭 Natural Contours,荷蘭 N C,美國 OhMiBod,美國 OMB,Naughti Nano ,音樂按摩棒,ipod按摩棒,美國 The Screaming O,美國TSO,美國TOPCO,美國Doc Johnson,美國CA Exotic,美國CEN,美國Nasstoy,美國Tonguejoy,英國Je Joue,美國Pipe Dream,美國California Exotic,美國NassToys,美國Vibropod,美國Penthouse,仿真按摩棒,矽膠按摩棒,猛男倒模,真人倒模,仿真倒模,PJUR,Zestra,適趣液,穿戴套具,日本NPG,雙頭龍,FANCARNAL,日本NIPPORI,日本GEL,日本Aqua Style,美國WET,費洛蒙,費洛蒙香水,仿真名器,av女優,打炮,做愛,性愛,口交,吹喇叭,肛交,魔女訓練大師,無線跳蛋,有線跳蛋,震動棒,震動保險套,震動套,TOY-情趣用品,情趣用品網,情趣購物網,成人用品網,情趣用品討論,成人購物網,鎖精套,鎖精環,持久環,持久套,拉珠,逼真按摩棒,名器,超名器,逼真老二,電動自慰,自慰,打手槍,仿真女郎,SM道具,SM,性感內褲,仿真按摩棒,pornograph,hunter系列,h動畫,成人動畫,成人卡通,情色動畫,情色卡通,色情動畫,色情卡通,無修正,禁斷,人妻,極悪調教,姦淫,近親相姦,顏射,盜攝,偷拍,本土自拍,素人自拍,公園露出,街道露出,野外露出,誘姦,迷姦,輪姦,凌辱,痴漢,痴女,素人娘,中出,巨乳,調教,潮吹,av,a片,成人影片,成人影音,線上影片,成人光碟,成人無碼,成人dvd,情色影音,情色影片,情色dvd,情色光碟,航空版,薄碼,色情dvd,色情影音,色情光碟,線上A片,免費A片,A片下載,成人電影,色情電影,TOKYO HOT,SKY ANGEL,一本道,SOD,S1,ALICE JAPAN,皇冠系列,老虎系列,東京熱,亞熱,武士系列,新潮館,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,情趣用品,整型,水噹噹,貸款,貸款,信用貸款,宜蘭民宿,花蓮民宿,未婚聯誼,網路購物,珠海,下川島,常平,珠海,澳門機票,香港機票,婚友,婚友社,未婚聯誼,交友,婚友,婚友社,單身聯誼,未婚聯誼,未婚聯誼,婚友社,婚友,婚友社,單身聯誼,婚友,未婚聯誼,婚友社,未婚聯誼,單身聯誼,單身聯誼,婚友,單身聯誼,未婚聯誼,婚友,交友,交友,婚友社,婚友社,婚友社,大陸新娘,大陸新娘,大陸新娘,越南新娘,越南新娘,外籍新娘,外籍新娘,台中坐月子中心,搬家公司,搬家,搬家,搬家公司,線上客服,網頁設計,線上客服,網頁設計,網頁設計,土地貸款,免費資源,電腦教學,wordpress,人工植牙,關鍵字,關鍵字,seo,seo,網路排名,自然排序,網路排名軟體,
希望大家都會非常非常幸福~「朵朵小語‧優美的眷戀在這個世界上，最重要的一件事，就是好好愛自己。好好愛自己，你的眼睛才能看見天空的美麗，耳朵才能聽見山水的清音。好好愛自己，你才能體會所有美好的東西，所有的文字與音符才能像清泉一樣注入你的心靈。好好愛自己，你才有愛人的能力，也才有讓別人愛上你的魅力。而愛自己的第一步，就是切斷讓自己覺得黏膩的過去，以無沾無滯的輕快心情，大步走向前去。愛自己的第二步，則是隨時保持孩子般的好奇，願意接受未知的指引；也隨時可以拋卻不再需要的行囊，一路雲淡風輕。親愛的，你是天地之間獨一無二的旅人，在陽光與月光的交替之中瀟灑獨行。
豆豆聊天室 aio交友愛情館 2008真情寫真 2009真情寫真 aa片免費看 捷克論壇 微風論壇 大眾論壇 plus論壇 080視訊聊天室 情色視訊交友90739 美女交友-成人聊天室 色情小說 做愛成人圖片區 豆豆色情聊天室 080豆豆聊天室 小辣妹影音交友網 台中情人聊天室 桃園星願聊天室 高雄網友聊天室 新中台灣聊天室 中部網友聊天室 嘉義之光聊天室 基隆海岸聊天室 中壢網友聊天室 南台灣聊天室 南部聊坊聊天室 台南不夜城聊天室 南部網友聊天室 屏東網友聊天室 台南網友聊天室 屏東聊坊聊天室 雲林網友聊天室 大學生BBS聊天室 網路學院聊天室 屏東夜語聊天室 孤男寡女聊天室 一網情深聊天室 心靈饗宴聊天室 流星花園聊天室 食色男女色情聊天室 真愛宣言交友聊天室 情人皇朝聊天室 上班族成人聊天室 上班族f1影音視訊聊天室 哈雷視訊聊天室 080影音視訊聊天室 38不夜城聊天室 援交聊天室080 080哈啦聊天室 台北已婚聊天室 已婚廣場聊天室 夢幻家族聊天室 摸摸扣扣同學會聊天室 520情色聊天室 QQ成人交友聊天室 免費視訊網愛聊天室 愛情公寓免費聊天室 拉子性愛聊天室 柔情網友聊天室 哈啦影音交友網 哈啦影音視訊聊天室 櫻井莉亞三點全露寫真集 123上班族聊天室 尋夢園上班族聊天室 成人聊天室上班族 080上班族聊天室 6k聊天室 粉紅豆豆聊天室 080豆豆聊天網 新豆豆聊天室 080聊天室 免費音樂試聽 流行音樂試聽 免費aa片試看免費a長片線上看 色情貼影片 免費a長片 本土成人貼圖站 大台灣情色網 台灣男人幫論壇 A圖網 嘟嘟成人電影網 火辣春夢貼圖網 情色貼圖俱樂部 台灣成人電影 絲襪美腿樂園 18美女貼圖區 柔情聊天網 707網愛聊天室聯盟 台北69色情貼圖區 38女孩情色網 台灣映像館 波波成人情色網站 美女成人貼圖區 無碼貼圖力量 色妹妹性愛貼圖區 日本女優貼圖網 日本美少女貼圖區 亞洲風暴情色貼圖網 哈啦聊天室 美少女自拍貼圖 辣妹成人情色網 台北女孩情色網 辣手貼圖情色網 AV無碼女優影片 男女情色寫真貼圖 a片天使俱樂部 萍水相逢遊戲區 平水相逢遊戲區 免費視訊交友90739 免費視訊聊天 辣妹視訊 - 影音聊天網 080視訊聊天室 日本美女肛交 美女工廠貼圖區 百分百貼圖區 亞洲成人電影情色網 台灣本土自拍貼圖網 麻辣貼圖情色網 好色客成人圖片貼圖區 711成人AV貼圖區 台灣美女貼圖區 筱萱成人論壇 咪咪情色貼圖區 momokoko同學會視訊 kk272視訊 情色文學小站 成人情色貼圖區 嘟嘟成人網 嘟嘟情人色網 - 貼圖區 免費色情a片下載 台灣情色論壇 成人影片分享 免費視訊聊天區 微風 成人 論壇 kiss文學區 taiwankiss文學區
外遇外遇外遇外遇外遇外遇外遇外遇外遇 外遇
外遇 外遇外遇 外遇 外遇
外遇 外遇 外遇
外遇
外遇 外遇
外遇
外遇 外遇外遇
外遇
外遇 外遇外遇 外遇 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 ,
外遇 外遇 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇外遇 外遇外遇 外遇 外遇
外遇 外遇
外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇 , 外遇劈腿劈腿劈腿劈腿劈腿劈腿劈腿劈腿喜帖囍帖卡片外遇外遇 外遇 外遇外遇 外遇
外遇 外遇 外遇 外遇剖析 外遇調查 外遇案例 外遇諮詢 偷情 第三者外遇話題 外遇發洩 感情挽回 徵信社 外遇心態 外遇 通姦 通姦罪 外遇徵信社徵信社外遇 外遇 抓姦徵信協會徵信公司 包二奶 徵信社 徵信 徵信社 徵信社 徵信社 徵信社 徵信 徵信 婚姻 婚前徵信 前科 個人資料 外遇 第三者 徵信社 偵探社 抓姦 偵探社 偵探社婚 偵探社 偵探社偵探家事服務家事服務家電維修家事服務家事服務家事服務家事服務家事服務持久持久持久持久持久持久持久離婚網頁設計徵信社徵信社徵信徵信社外遇離婚協議書劈腿持久持久持久持久持久劈腿剖析徵信徵信社外遇外遇外遇外遇徵信社徵信社徵信社徵信社徵信社徵信社徵信徵信社徵信徵信徵信徵信徵信徵信徵信徵信徵信徵信徵信徵信徵信徵信徵信徵信徵信徵信徵信徵信徵信徵信徵信徵信社徵信社徵信社徵信社徵信社徵信社徵信社徵信社
Post a Comment