Democrats were anxious to get the sleazy, shaggy-haired governor out of their hair before he could spatter doo-doo on Mr. Obama and/or his (supposed) squeaky-clean transition team - including the highly partisan (and strangely quiet) Rahm Emanuel, who might be hip-deep in the whole sordid, "pay-for-play" business Blago was running. In their haste, Dems unfortunately overlooked a few salient details: i.e., (1) the governor hadn't actually been convicted of anything; (2) he retains the powers of his office until he leaves; (3) a special election might produce an embarrassing Republican win of the president-elect's seat; and (4) the governor is a lot tougher than the pussies in the media and the U. S. Senate anticipated.
On the way to making Senators Dick Durbin (D-Ill.) and Harry Reid (D-NV) look like "complete fools" (in analyst Morton Kondracke's pithy phrase), the governor did several interesting things. First, he kept mum while the storm of media denunciation blew itself out. (The normally cautious Mr. Obama could have learned from this.) While politicians joyfully (and righteously) piled on, Mr. Blagojevich said nada. His lawyer, however - experienced defense attorney Ed Genson - declaimed about every defendant's right to be "presumed innocent until proven guilty". No doubt the governor and his attorney used the time afforded by the media-political feeding-frenzy to consider what Mr. Blagojevich should say when he finally made a public statement.
When he did speak, the governor simply claimed innocence of any wrongdoing, struck a "humility" posture about his rough language on the recordings - which (he said) he certainly would not have used, had he known he was being recorded - and vowed to "fight and fight and fight" to retain his office and serve the people of Illinois. Reporters mocked him for not knowing when he was whipped, but a germ of respect for the embattled governor began to grow in the public consciousness. Both Mr. Blagojevich and his attorney had tapped into one of the few lines of sympathy available: Americans love an underdog. All improbably, Blago had become one.
Reduced to its essence, Mr. Blagojevich's line was this: (a) I'm still the governor; (b) I'm not stepping down just because some pantywaist prosecutor tapped my phone; so (c) take your best shot. Except for the unpleasant associations, he might well have used the memorable phrases of local personality Al Capone: "Do you know who you're messin' with?" and "You got nah-thin'."
Subsequently, the Democratic blitz to drive the governor from his office failed utterly. The Illinois Supreme Court refused to hear a suit by the Illinois Attorney General claiming the governor was "unfit" to serve in his office. Senator Dick Durbin wrote a letter to the embattled governor, saying, "Beyond guilt or innocence, the charges against you raise serious questions about your ability to carry out your duties as chief executive of our state." Democratic "statesmen" in the U. S. Senate stoutly insisted that no appointment made by the "dirty" Illinois governor would be seated in the hallowed chambers of the World's Greatest Deliberative Body.
Then (as we used to say in the old neighborhood), the stuff hit the fan. The governor who was too dumb to know when his goose was cooked appointed former Illinois attorney general Roland Burris to the vacant senate seat. Coincidentally (or is it?), Mr. Burris is black - a beautiful (some said "brilliant") twist of irony that saw Democrats "hoist on their own petard". Best of all, Mr. Burris approached the Senate without a scintilla of deference - saying he was the "new junior senator from Illinois", and declaring his expectation of swift acceptance.
In one masterstroke, the embattled governor had surprised, outflanked and totally routed his own party, including the president-elect, who had previously said Mr. Blagojevich should not appoint a new senator while an ethical cloud hung over him. Through spokesman, Robert Gibbs, Mr. Obama had said, "...it is difficult for the governor to effectively do his job and serve the people of Illinois." On Tuesday (Jan. 6th), Senate Majority Leader Harry Reid denied Mr. Burris entry to the Senate floor, sending him unceremoniously out into the cold DC rain.
But by Wednesday, all had changed. Mr. Reid and Mr. Burris were seen amicably chatting in Mr. Reid's office, amid the flash of reporters' cameras and the whirr of video equipment. Said Mr. Reid: "He obviously is a very engaging, extremely nice man. He presents himself very well. He's extremely proud of his family. He's got two Ph.Ds and two law degrees, and he talked about how proud he was of having those degrees." (Isn't that special? So much for not seating a Blagojevich appointee.) Mr. Obama has also done a complete flip (if not flop), saying he would "work with" Mr. Burris in the Senate, and vaguely noting that this was "a Senate matter". Other key Democratic figures crowded in to endorse Mr. Burris and smooth his path. The defeat was total.
As I write this, a committee in the Illinois Legislature has voted to impeach the governor. But the outcome of this effort is far from certain, for political reasons. Mr. Blagojevich's prosecution on corruption charges also remains on the docket, but Blago has effectively run out the clock on that. Am I the only one who thinks his case will never come to trial? Look for Mr. Fitzgerald to announce, within the next few months, that he is leaving public office "to spend more time with my family". Or will he quietly drop the Blagojevich case "for lack of credible evidence"? The "best shot" of Blago's enemies will have failed. I predict he will beat the rap.
An antecedent to the saga of Mr. Burris is a past case involving Adam Clayton Powell, Jr. - a black congressmen from Harlem. Mr. Powell was a vocal advocate for black civil rights at a time when few such voices existed inside the government. This made him controversial, by definition, in a Congress controlled by white southern Democrats. Moreover, Mr. Powell was a flamboyant character who lived high in Bimini, kept a mistress (or two) and seemed to have mysterious sources of income at a time when congressmen earned $30,000 a year.
After years of controversy, Rep. Powell's handling of funds for the Committee on Education and Labor was investigated. House leaders finally decided that enough was enough. He was stripped of his committee chairmanship, and House members expelled him by a vote of 307-116. (The Washington Post observed, at the time, that Mr. Powell might have thought he was a member of the Congressional Club, but in the end he learned that he was just considered "an uppity nigger".)
Mr. Powell sued in federal court over his expulsion, however, claiming it was unconstitutional. Although courts generally demur from hearing such suits - deferring to Separation of Powers - the Supreme Court decided it could intervene. In 1969, the Court ruled that the House could not refuse to seat a member except for a deficiency in constitutionally specified credentials of age, citizenship and residence. Mr. Powell was subsequently re-elected to his seat by his Congressional district. The controversy faded away after his death in 1972.
I mention this case because it has been cited as proof against the Senate denying Mr. Burris his seat - regardless of how tainted his sponsor (Mr. Blagojevich) might be. In this estimate, however, I believe the analysts are incorrect, as they almost uniformly take, as an article of faith, the legitimacy of the Supreme Court's 1969 ruling on the Powell case. The fact is that the Senate has every right to say to the Court what Mr. Blagojevich effectively said to his own party: take your best shot. The Constitution empowers both houses of Congress to decide who will be seated. No particulars are given, and the Supreme Court's right to decide internal Congressional matters is nowhere mentioned. It is a Separation of Powers issue.
To see why this must be so, suppose Congress impeaches and removes from office a president or judge. Then suppose that the expelled official sues in the U. S. Supreme Court. The Court rules that the grounds for the conviction were improper and sets aside the Congressional verdict. Seems reasonable? Bzzzzzt! Congress can ignore the ruling because the Court lacks Constitutional authority for making it. The Powell case (mentioned above) was exactly such a case. How the Congress does its business is not a concern of the courts. Imagine the mischief that might be done if the courts decided to intervene in war policy or foreign policy or other matters that are the exclusive purview of the other two branches.
The difficulty is that Congress and the Executive Branch have been allowing the Court to step on their Constitutional powers for most of the last half-century. Until very recently, the Court has shown no inclination to stop doing this, with some pretty close calls resulting. At the time of George Bush's second inauguration, for example, a suit was brought to the Supreme Court insisting that an inaugural prayer violates the "establishment" clause of the First Amendment. Perhaps sensing that finding for the plaintiff might provoke a Constitutional crisis, the Court ruled that the plaintiff lacked standing to bring the suit. This conveniently dodged the issue, but a prayer-prohibition would have been an unconstitutional incursion into the business of the Executive Branch. Mr. Bush would almost certainly have ignored it and let the prayer be offered at his inauguration. In the opinion of this writer, such an action is long overdue.
The Senate will not attempt to keep Mr. Burris out because Democrats do not want to be seen denying Mr. Burris his seat, on account of his race. Also, they need a Democratic vote in that seat. They will use the phantom of a possible Court ruling as a reason to accept Mr. Burris without a fight that might provoke repeated appointments by an unrepentant Governor Blagojevich, or else a special election that might lose the seat to the GOP. It is a very tangled web, but with Democrats in power, get used to this kind of intrigue. They play dirty.