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Author Topic: Illinois Governor Arrested (attempting to sell Obama's Senate seat)
BannaOj
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I'm curious as to sndrake's take on this interpretation of "disability" especially because he has experience in IL in particular.
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Dagonee
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I'm assuming that if "disability" in that context had ever been successfully used in the manner she advocates then she would have cited the case.
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BannaOj
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Can they order an impartial psychiatric evaluation, because the man is not behaving in a sane manner?
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The Rabbit
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Thanks Dagonee, I was fairly confident that you felt her arguments would set a precedent that opened a door for abuse but since I am not familiar with the brief I wasn't sure why.

quote:
Originally posted by BannaOj:
Can they order an impartial psychiatric evaluation, because the man is not behaving in a sane manner?

Her arguments seem to hint at a mental disorder but they don't actually make that claim directly. If he were diagnosed with a mental disorder, say for example Narcissistic Personality Disorder, I think it would be reasonable to claim that this diagnosed disorder was a "disability". But she doesn't actually make this argument.

I have to agree with Dagonee that the way she defined "disability" is disturbingly broad.

I wish that the US had stronger conflict of interest laws for elected officials. I think elected officials should be legally required to recuse themselves from participation in any decision that presented a substantial financial or personal conflict of interest. Violations of the law should lead not only to criminal charges but to immediate invalidation of any contracts, laws, appointments made in violation of the law.

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Samprimary
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quote:
Originally posted by BannaOj:
Can they order an impartial psychiatric evaluation, because the man is not behaving in a sane manner?

No, you don't get hauled in for being a sociopath.
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sndrake
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I went and read the brief after Dag red-flagged it. (That's something I generally do if it's a subject of interest.)

As near as I can figure, this was enacted in 1970. I'm not a lawyer, but this may not be as unusual as some of you think.

Broad definitions of incapacity and/or disability are built into (I think they're still this way in Illinois) guardianship statutes. Many states - as a matter of statute - allow a declaration of incapacity or incompetence for physical disability alone.

In fact, in general, I'll go out on a limb and say that definitions of disability that deal with taking away your rights (such as guardianship or this current situation) tend to be very broad.

OTOH, legal definitions related to protections or benefits tend to be relatively narrow or at least well-defined (social security, American with Disabilities Act).

As I googled around on this, the most interesting thing I found is the total silence from disability bloggers on this. Two blogs devoted to picking up disability-related media coverage haven't picked this up at all. No bloggers that I can find (disability bloggers) are discussing it at all.

I think I'll go post something on a couple disability listservs I'm on to see if I can rectify the situation - It's not really my subject area and kind of out of my area of expertise, but I'm really puzzled that this aspect of one of the top two national stories isn't being discussed in the disability community.

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Tatiana
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It really sounds like we need to open a Chicago branch of the Gulabi Gang who fight things like societal-approved wife-beating and government corruption by dragging the men into the street and whacking them with sticks if necessary. That puts the fear of shame into them and makes them act better. Seriously I think a Gulabi Gang here might be just what we need to make corrupt government officials clean up their acts.

[ December 13, 2008, 01:29 PM: Message edited by: Tatiana ]

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Dagonee
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quote:
As near as I can figure, this was enacted in 1970. I'm not a lawyer, but this may not be as unusual as some of you think.
The language is, I believe, a carryover from an earlier state constitution.

Disability is often used in non-physical contexts. Imprisonment is a legal disability in some contexts in some states. But generally not in a fitness for office context.

quote:
Broad definitions of incapacity and/or disability are built into (I think they're still this way in Illinois) guardianship statutes. Many states - as a matter of statute - allow a declaration of incapacity or incompetence for physical disability alone.
I'm assuming a certain level of competency on the AG's part, but I seriously doubt that she (her staff, really) didn't look for examples that would have supported her broad definition.

Statutory construction is (much) more an art than a science, but she takes a lot of liberties. The following objections to her interpretation are right off the top of my head.

First, the text being construed: "If the Governor is unable to serve because of death, conviction on impeachment, failure to qualify, resignation or other disability, the office of Governor shall be filled by the officer next in line of succession for the remainder of the term or until the disability is removed."

She argues that "other disability" describes someone who is "unable or unfit to serve or who has been rendered incapable of proper or effective action."

Her interpretation amounts to something like "If the Governor is unable to serve because of ... or because he is unable or unfit to serve or has been rendered incapable of proper or effective action, the office of Governor shall be filled by the officer next in line of succession for the remainder of the term or until the disability is removed."

In other words, under her definition, "other disability" does no work except to make it clear that the list of reasons is non-exclusive. This isn't unheard of, but typically courts resist such interpretations. The maxim is that we assume each word has meaning.

quote:
Her arguments seem to hint at a mental disorder but they don't actually make that claim directly. If he were diagnosed with a mental disorder, say for example Narcissistic Personality Disorder, I think it would be reasonable to claim that this diagnosed disorder was a "disability". But she doesn't actually make this argument.
I think she's aware she can't make the case for an actual mental illness. Plus, if she did, she'd be providing ammo for his defense against the charges - probably ineffective ammo, but she must be aware of the possible harm she could do to he governor's case.

I don't fear the broadening of "disability" outside this context, because I doubt there'd be much spillover, but rather the structural precedent, wherein one executive officer and a court can remove a sitting governor in a way that deliberately short-circuits the intended mechanism for removing governors because of malfeasance.

If this is truly urgent, then the legislature ought to convene now and impeach him. And then look for a way to amend the constitution for future instances to account for this kind of thing. Such a mechanism would also take resignation from office off the plea negotiating table, something I think is unseemly.

I would propose amending the temporary removal section to explicitly allow the court to remove a governor under indictment. I've seen opposition to this based on "innocent until proven guilty," but paid administrative leave is quite common in such situations.

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Orincoro
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I would only be concerned that technically, iirc, a grand jury can indict anyone for anything. Doesn't mean it would stick, but that would give a small group of citizens the ability to remove a sitting executive at almost any time. Is that not the case?
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Dagonee
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quote:
I would only be concerned that technically, iirc, a grand jury can indict anyone for anything. Doesn't mean it would stick, but that would give a small group of citizens the ability to remove a sitting executive at almost any time. Is that not the case?
No, because adding indictment to the fitness provisions would have the court look into the indictment, at least somewhat, before removal. Plus, indictments require executive action (in this case, U.S. attorney - which almost certainly required USAG approval beforehand) as well. There are some checks built into that process as well. Finally, it's temporary. There are mechanisms in place for challenging indictments before trial.
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sndrake
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Latest news:

An ex-Supreme Court Justice in Illinois Agrees with Dagonee:

quote:
Former Illinois Supreme Court Justice Louis Rathje believes Attorney General Lisa Madigan's request for the state's highest court to remove Gov. Rod Blagojevich from office is beyond the court's powers.

"Lisa Madigan is doing a stretch and is pushing this as far as she can go to see what she can do," Rathje said Monday in a telephone interview. "Hopefully, he'll just resign."

Obama Review Done, will be released next week:

quote:
The Obama transition team released a statement on its communications with Blagojevich in relation to Obama's Senate seat.

There are two pieces of news:
(1) The Obama team has completed its review of communications with Blagojevich's office and affirms that the president-elect had no contact with the governor and that his staff had no "inappropriate discussions."

(2) They won't release the review, however, until Dec. 22 -- at the U.S. Attorney's office's direction.

Speaker Madigan Appointing Committee to Review Impeachment
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sndrake
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No news articles on this yet, but I received a "breaking news" alert from the Chicago Tribune:

quote:
SPRINGFIELD--The Illinois Supreme Court has rejected Atty. Gen. Lisa Madigan's attempt to have Gov. Rod Blagojevich declared unfit to hold office, court officials said.

The high court issued the order without comment.

More details to come.



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Christine
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The Illinois congress is starting impeachment proceedings, though, so it's not like protections aren't built into the constitution. It just doesn't happen overnight. I would be afraid if we established a precedent for setting aside due process, especially over a matter of impatience.
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BannaOj
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Here is the most complete recent synopsis I can find.
http://online.wsj.com/article/SB122954137030315073.html

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BannaOj
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The latest Apparently Blago has appointed someone but the Senate says they wont seat him. Wonder what is going to happen next.
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BlackBlade
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quote:
Originally posted by BannaOj:
The latest Apparently Blago has appointed someone but the Senate says they wont seat him. Wonder what is going to happen next.

A most unfortunate development. I hope this turns out well. I think the Senate should first actually review Roland Burris' credentials and the circumstances surrounding his selection before deciding whether to seat him. He should be given a fair shot at being seated.

On the other hand, and I am at this point convinced Blagojevich is guilty, Blagojevich should not have appointed anyone to the senate and should have resigned. I imagine he is using his refusal to resign as a means to broker some sort of deal for leniency.

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BannaOj
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More casualties.
Quinlan resigns

I'm speculating the next thing that is going to happen in several weeks to a month is that Blago is going to make a grandiose unsuccessful attempt at suicide (not political suicide, the real thing) and somehow blame it on the pressures "everyone else" has brought on him to make a sympathy ploy. This will then allow him to remain in medical seclusion so he doesn't have to deal with the press.

At that point the attorney general can again go to the IL Supreme Court to get him declared incompetent and might suceed.

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Lisa
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quote:
Originally posted by BlackBlade:
I think the Senate should first actually review Roland Burris' credentials and the circumstances surrounding his selection before deciding whether to seat him. He should be given a fair shot at being seated.

No way. Think about it. If they confirm him, they're basically giving a stamp of approval to Blago. Or it'll look that way, anyhow. And Burris knows it. Accepting the appointment only makes sense if he's trying to help Blago, which in my opinion should be grounds for disqualification at this point.
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BlackBlade
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quote:
Originally posted by Lisa:
quote:
Originally posted by BlackBlade:
I think the Senate should first actually review Roland Burris' credentials and the circumstances surrounding his selection before deciding whether to seat him. He should be given a fair shot at being seated.

No way. Think about it. If they confirm him, they're basically giving a stamp of approval to Blago. Or it'll look that way, anyhow. And Burris knows it. Accepting the appointment only makes sense if he's trying to help Blago, which in my opinion should be grounds for disqualification at this point.
In the meantime Illinois is short a senator in a pretty precarious situation. Blag is still the governor and innocent until proven guilty, it's his constitutional right to select a replacement senator. I think since he has used that power, a review panel should determine if Burris is qualified.
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Lyrhawn
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I sort of agree. Since he IS the governor, and it IS his job to make appointments, that's really all that matters and he should be able to make this appointment. It doesn't really matter in the eyes of the law whether he'll soon be out. That never stops presidents from making midnight appointments and executive orders that take a long time to undo if unwanted.

Besides, what are they going to do if they actually CAN'T remove him from the seat, or what if it takes months? Illinois shouldn't be without representation for that long, not if it turns out this guy actually is qualified for the spot. I think they should review his credentials and how he got appointed as well. If there's nothing shady and he's qualified, they should consider confirming him. He'll be gone in two years anyway.

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BannaOj
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http://www.chicagobreakingnews.com/2008/12/blagojevich-proclamation-on-burris-is-rebuffed.html

The secretary of state is refusing to certify the appointment. However there doesn't appear to be any true legal requirement that requires the secretary of state to certify it. Yeah there's a spot for him on the form but there appears to be nothing legally binding about it.

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sndrake
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Other interesting items:

U.S. Representative Danny Davis was offered Senate seat and turned it down

quote:
At a Tuesday news conference here, Mr. Blagojevich breezily introduced Mr. Burris, a former Illinois attorney general, as the “next United States senator from Illinois.” But United States Representative Danny Davis, who like Mr. Burris is a longtime fixture of the Illinois Democratic Party and an African-American, said he was offered the seat in a meeting with an emissary of the governor last Wednesday, and turned it down on Friday.

“Given all the revelations and all the controversy, I would not be able to take it from the governor,” Mr. Davis, who has represented a Chicago district in Congress since 1996, said in an interview. “I felt that if I was to take the appointment, I would spend so much of my time deflecting and defending the position that it would take away my real reason for being involved in politics and political life — to find solutions to problems.”

Fitzgerald Requests 90-Day Extension For Indictment of Blagojevich

quote:
The U.S. attorney pursuing corruption charges against Illinois Gov. Rod R. Blagojevich asked a court Wednesday for a 90-day extension of the time allotted for the return of an indictment.

U.S. Attorney Patrick J. Fitzgerald cited mountains of recently wiretapped telephone conversations, the complexity of the case, the possibility of additional defendants and the holidays in seeking the delay.



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BannaOj
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Blagos Homeland Security Clearance revoked

Burris appointment rejected by Secretary of Senate, 90 extension granted to Fitzgerald

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kmbboots
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I am beyond annoyed at the folks who are trying to make the Senate refusing to seat Roland Burris about race.
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Lisa
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Annoyed, yes. But surely not surprised?
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kmbboots
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True.
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Orincoro
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quote:
Originally posted by kmbboots:
I am beyond annoyed at the folks who are trying to make the Senate refusing to seat Roland Burris about race.

Oh don't kid yourself. We live in a highly racist society. In fact, I wager this country will never elect a black man to high office.
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kmbboots
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Illinois sure wouldn't anyway.
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aspectre
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"We are hoping and praying that they will not be able to deny what the Lord has ordained...I am now the junior Senator from the state of Illinois..."

Tis sad really, Burris being so far adrift from reality that he thinks the governor of Illinois is God.
And the Republicans will probably agree with him.

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katharina
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I am more bothered that he is being held up as a great Illinois politician when he has lost the last four races he was in, including to Blago for governor.

Clearly, Illinois doesn't want him representing them. "Lord has ordained" my foot.

He accepted because he has nothing to lose - being appointed is the only way he'll get another office. If he loses all credibility, he apparently didn't have much to begin with or it wasn't doing him any good.

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kmbboots
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Also true. I wonder how many Blagojevich had to try before he got to someone who was desperate enough to accept.
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BannaOj
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http://www.nytimes.com/2009/01/07/us/politics/07burris.html?pagewanted=1&_r=1&hp

I wasn't aware of Rule 2 of the standing senate rules.

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BlackBlade
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quote:
Originally posted by BannaOj:
http://www.nytimes.com/2009/01/07/us/politics/07burris.html?pagewanted=1&_r=1&hp

I wasn't aware of Rule 2 of the standing senate rules.

And I am so glad rule 2 exists.
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BannaOj
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I'm not sure how that standing rule really affects things in a legal challenge though.
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kmbboots
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I think the point is to stall until Blagojevich is impeached.
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sndrake
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The delaying approach may be untenable. Right now, there are conflicting reports coming from mainstream news sources - some saying Senate leaders *will* seat Burris and others saying the first story is mistaken.

Frankly, I'm not at all impressed with Burris, but there are lots of folks in Congress I'm not impressed with.

I think the law is on his side and the ultimate outcome in court will be that he should be seated.

Most of the folks in the Senate are lawyers, so I am sure they can figure it out too. They might as well grit their teeth and accept this (hopefully) last "gift" from Blago.

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BannaOj
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http://www.chicagobreakingnews.com/2009/01/panel-full-house-should-vote-on-impeachment.html

The impeachment is now out of committee and should be voted on soon.

The radio said that the state senate is already gearing up to block out 2 weeks for trial proceedings.

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Derrell
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They voted to impeach him. I just heard it on the news.
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BannaOj
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http://www.chicagobreakingnews.com/2009/01/house-impeaches-blagojevich.html

That was fast, they weren't expecting a vote until this afternoon, because they thought most representatives were going to use their 5 minutes of speechifying time before the vote.

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BannaOj
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ahh here's a liveish blog with a timeline
http://newsblogs.chicagotribune.com/clout_st/2009/01/live-blog-of-il.html

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Sterling
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Frankly, it doesn't matter if Burris walks on water. Allowing him to be seated starts off the Obama presidency with a note of "Do anything to win, ostracize the minority vote, politics as usual", and the Democrats can't afford that.

That Burris is willfully choosing to ignore that isn't exactly crowning him in glory, either.

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scholarette
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I disagree with Sterling. Blagovich has not been convicted and at the time, it was his right and his duty to appoint someone. Seating Burris reaffirms our belief in innocent until proven guilty and the rule of law we have established. Illinois can certainly change its law to prevent this in the future, but right now, to not seat Burris is wrong. I think not seating him is a slap in the face to Illinois. They deserve representation, even if their governor is a crook. And this is the system they have selected for deciding that representation when there is an opening.
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kmbboots
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I don't know anyone here that feels slapped in the face by the Senate. Kicked by Blagojevich, certainly and embarrassed by him. But I know no one who really wants Burris seated.
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katharina
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After reading all of it, it looks like Blago still had a legal right to appoint Burris, and Burris himself is not disqualified.

Stupid "innocent until proven guilty" thing.

Burris just wanted to be able to call himself a Senator. I can't imagine that he will be either effective or be re-elected. Really, I think he's a weenie - that "appointed by God" bit did him no favors. But I guess it was legal.

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ricree101
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quote:
Originally posted by scholarette:
I disagree with Sterling. Blagovich has not been convicted and at the time, it was his right and his duty to appoint someone. Seating Burris reaffirms our belief in innocent until proven guilty and the rule of law we have established. Illinois can certainly change its law to prevent this in the future, but right now, to not seat Burris is wrong. I think not seating him is a slap in the face to Illinois. They deserve representation, even if their governor is a crook. And this is the system they have selected for deciding that representation when there is an opening.

Blagojevich is innocent until guilty, but given the seriousness of the charges and the evidence for them, it seems prudent to hold off on Burris until Blagojevich has been found guilty or not guilty. As far as I know, it is much harder to remove Burris if Blagojevich is removed from office and/or convicted than it is to refuse seating him until things are cleared.

As an analogy, consider a defendant who is considered a flight risk. They are still innocent until proven guilty, but they are still held in jail until the issue is decided because the consequences of releasing them may be hard to reverse. Likewise, they should not accept this appointment until the issue is decided because it is harder to reverse the damage if Blagojevich is guilty.

In regards to the representation issue, I agree with kmbboots that most of the people living here that I know do not want Burris seated even though it means having reduced representation until the issue comes to a conclusion.

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sndrake
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State Court Rebuffs Burris on Seante Signature

quote:
The Illinois Supreme Court today rejected Roland Burris' effort to get the signature he needs to complete his appointment to the U.S. Senate.

Burris was seeking to compel Secretary of State Jesse White to sign the certification of appointment naming Burris to the seat vacated by President-elect Barack Obama. Gov. Rod Blagojevich named Burris to the Senate seat last week, but White refused to sign the required paperwork because the governor has been charged with crimes including trying to sell the Senate seat.


Democratic leaders in the U.S. Senate have cited the lack of White's signature as a reason not to allow Burris into the Senate.

White has maintained that his signature is purely symbolic, and the high court agreed in its refusal to grant the motion.

"Because the secretary of state had no duty ... to sign and affix the state seal to the document issued by the governor appointing Roland Burris to the United States Senate, petitioners are not entitled to an order from this court requiring the secretary to perform those acts," the high court wrote in its opinion. "Under the secretary of state act, the secretary's sole responsibility was to register the appointment, which he did."

Secretary of State Jesse White spokesman Henry Haupt said the office will review the ruling and issue a statement shortly.

"We have not seen it yet, and our attorneys still have to review," Haupt said. "We will be issuing a statement as soon as possible."



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Lyrhawn
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Frankly the most disturbing thing for me in this whole political conflagration has been Harry Reid. I can get over the state politics in Illinois, and I don't even have a problem swallowing Burris for two years until his term expires, but has anyone actually watched the progress of Reid's "leadership" on this issue?

He's been bugging the hell out of me for awhile now, but I was hoping that he was just playing the victim and biding his time until a Democrat became president so he could really start to move some paper and get Democratic ideas made into law. Now I'm not so sure. He's bungled the last two years of Democratic control of the Senate, allowing Republicans to run roughshod over him with dozens of fillibuster threats without actually making them carry out any of them in order to win the PR victory and maybe even the legislative victory as a result. He's shown a history of being unwilling to fight for the important things, of talking a good game but never following through.

Well, here's the latest example. First he says that it would be impossible for Burris to be seated in the Senate, and that Democrats control who is and isn't seated in the Senate. That was a stupid statement to make in the first place since he doesn't have the automatic legal backing to make it stick. At the very least this thing was always going to go to court. It wasn't until Obama stepped in and said that he'd be okay with Burris that Reid changed his tune and sung his praises, but in a press conference near to that one said that Obama wouldn't get a blank check.

It's a horrible mix of messages. It would have made sense if he was sacrificing his own clout to improve Obama's on the Hill, or it would have made sense if he was sending a strong message to Obama by defying him (not necessarily the GOOD choice, but the one that makes some sense). Instead he says he won't green light Obama, at which point he reverses himself in order to do just that, and in general the constant message is: Harry Reid is utterly ineffective.

How the heck is he still in charge over there? He must be every Republican's favorite Democrat. Put Chris Dodd in charge or something.

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BannaOj
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Senate wont seat Burris without a signature

The IL Supreme Sourt says the IL Sec of State doesn't have to sign the document, and now the US Senate says they won't seat him without that signature. What court does it go to now? The US Supreme Court?

Also amusing
Blago jogging while impeachment vote is held

If he's still the governor, shouldn't he at least be attempting to work instead of jogging?

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BannaOj
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interesting little snippet about possible contact between Burris and blago
http://www.suntimes.com/news/metro/blagojevich/1369257,CST-NWS-impeach09.article

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ricree101
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I listened to that press conference earlier today on the radio. It almost sounds as if they have talked with Burris about having him back down until Blagojevich is removed from office, at which time they will push to have Burris appointed by Pat Quinn. I say this because Durbin made several references to how all of the problems would go away if Quinn appointed Burris, and when a reported asked about the Quinn appointing someone besides
Burris, Durbin seemed to brush it aside.

Everyone knew that there was a strong chance that some sort of back room deal would take place, and I think we are starting to see it shape up. If all goes smoothly, I suspect we will see Burris make only token efforts to be seated, and as soon as Blagojevich is removed Quinn will step in and legitimize the appointment. A win-win for everyone except Blagojevich. The senate and Illinois politicians get to stand tough, Burris gets his seat, and there is no messy and potentially damaging fight to slog through. Sure, Blagojevich gets thrown under the bus with this, but his approval is pretty much nonexistent and it really does look like he's guilty and on his way to a criminal conviction.

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