Why aren't there any black Senators?

James Taranto reacts to the inflammatory assertion that "Mark Kirk Re-Segregates the Senate." It's true that "of the four blacks who've served in the U.S. Senate since Reconstruction, three of them held what is now Kirk's seat: Carol Moseley Braun, Obama and [Roland] Burris." So a black person's chances of getting elected to the Senate seem best in Illinois, but it didn't happen this year. But why aren't black candidates more successful in running for statewide office? Taranto blames the Voting Rights Act:

In the interest of increasing minority representation in the House and state legislatures, the act mandates the drawing of "majority minority" districts.

On its own terms, this has worked very well. The size of the Congressional Black Caucus relative to the House is within a few percentage points of the black proportion of the population. Seats in state legislatures and the House frequently are stepping stones to statewide office. But because black politicians need not cultivate a transracial appeal to win office in the first place, they are at a disadvantage when they consider a statewide run.

Moseley Braun and Obama are exceptions. (The unelected Burris is irrelevant to this analysis.) Before being elected to the U.S. Senate, both served in the Illinois Legislature from Chicago's Hyde Park, which, although a decidedly left-wing constituency, is one of the most racially integrated in the nation.

"If I've done the things I've been accused of, I would be too embarrassed to stand up here because you are all my friends."

The pressure on Burris to resign.

Can we say Roland Burris lied to get to his Senate seat?

Here's what we know so far. I see no reason to be delicate about it. I have defended Burris — click the tag to see — and I say that if he was not forthcoming about how he got the seat Blagojevich handed him, he does not deserve to keep it. Expel him, Senate!

"What Maureen Dowd misses is that both Blagojevich and Paterson rolled Obama on Senate picks. And rubbed it in, hard."

Exactly.

What powers Dianne Feinstein?

According to John Fund, since there's a good chance that Feinstein will run for Governor in California in 2010, she doesn't have to go along to get along with her Senate colleagues. She's got an incentive to stand apart and distinguish herself.

Great! I've been enjoying watching Dianne Feinstein lately....

This week, she bristled when Barack Obama picked fellow Californian Leon Panetta to be CIA director. She bluntly noted he lacked any intelligence experience and that she had not been consulted even though she chairs the Intelligence Committee. An irritated Senator Reid told Politico.com: "I think you need better reasons for coming out against somebody than somebody didn't call you."

Mr. Reid was also not happy that Ms. Feinstein, a key member of the Rules Committee, openly bucked the party line on whether Illinois Democrat Roland Burris should be seated despite the fact he was appointed by scandal-implicated Gov. Rod Blagojevich. Ms. Feinstein challenged the position of Democratic leaders who rejected Mr. Burris, saying their move called into question the validity of "gubernatorial appointments all over the country."

Mr. Reid is clearly of another view. "It's not valid, her statement," he told Politico. "I told her that. OK?" Nonetheless, many observers expect Mr. Burris to be quietly seated in coming days.

Ha ha. Go, Dianne.

Let's not laugh along with Jane Hamsher over Harry Reid's problems.

Quipping "INSTAPUNDIT: Bringing America together!," Glenn Reynolds highlights a couple conservative blogs that thank him for linking to a post by lefty firebrand Jane Hamsher.

GayPatriot said he'd been permanently avoiding reading Jane's blog (FireDogLake), and Glenn's post led him to something he "pretty much" agreed with. And Syd And Vaughn, another FireDogLake avoider, saluting Glenn for taking them to Jane's "very valid" post, declared "Kumbaya!"

So let's look at Jane's post — "I want to play poker with Harry Reid" — and see if it's true that lefties and righties can come together and laugh about Reid's pathetically played politics.

First, if you haven't already, read her whole post. Despite some awkward, cornball writing — "Reid looks like a cat in a room full of rocking chairs on Meet the Press" — it's generally very pithy and funny, and it sums up the embarrassing succession of bad moves Reid made. We can all have a shared laugh about that.

But, my fellow moderates and conservatives, focus on this:

A seventy-one year old dude who hasn't held office for 14 years, appointed by a crook, takes the Senate Majority Leader to the cleaners.

Reid is a red state senator, up for re-election in 2010 and under pressure from the right, who is already making noise about appeasing Republicans who aren't going to be appeased. He's a hazard to Obama's agenda, which is why leading Senate Democrats tried to ease him out as Majority Leader last year.

Hamsher is rooting for the left wing of the Democratic Party. She thinks Reid will keep the party centrally located and give Republicans some clout, so she's saying loud and clear: He's a terrible leader. Don't follow him.

So Jane's post doesn't make me say oh, ha ha, Harry Reid, what a fool. It makes me reconsider whether I want to continue knocking him around. I have been giving Reid a hard time mainly because I think law is important and the legal question is easy: Blagojevich is the governor, he has the appointment power, he appointed Burris, so Burris properly holds the Senate seat until 2010. Deal with it. Blagojevich's sliminess doesn't suspend the rule of law. Play by the rules.

I'm not going to change my strong opinion on that point, but I'm realizing that we need to keep a sharp eye on the people like Hamsher who are hot to push Congress to the left.

ADDED: Henry, the commenter, emails a Venn diagram:

Harry Reid on Roland Burris: "He obviously is a very engaging, extremely nice man. He presents himself well."

After a meeting this morning.

Presents himself well????

Rush Limbaugh, just now, ridiculing the Democrats' racial attitudes, likened that quote to Joe Biden's famous assessment of Barack Obama: "I mean, you got the first mainstream African-American who is articulate and bright and clean and a nice-looking guy."

The Senate must seat Roland Burris.

Says Walter Dellinger, who was a Supreme Court law clerk (for Hugo Black) when the Supreme Court decided the Adam Clayton Powell Jr. case (Powell v. McCormack):

In Justice Black’s view, one of the worst abuses of power in England resulted from parliamentary majorities wrongly refusing to seat dissident legislators. That experience makes me very wary about the Senate’s barring a person from taking a seat unless its authority to do so is clear. Here it is not.

Dellinger notes that Blagojevich is the governor, he has the appointment power, and he has exercised it:

The charges that he sought bribes to appoint certain candidates to the Senate do not automatically render illegal other official acts of his office like signing laws or pardoning criminals. And because there is no evidence that a bribe was solicited from, or proffered by, Mr. Burris, his appointment is presumptively lawful.

Nor do the other arguments against Mr. Burris’s appointment hold up. The contention by the Democratic leadership that Mr. Burris can be denied a seat because the Illinois secretary of state refuses to sign his appointment papers is without merit — it would confer upon secretaries of state absolute veto power over governors’ appointments.

The idea of delaying and giving the Illinois legislature a chance to impeach Blagojevich makes no sense, because Burris has been validly appointed, so he's in until the term is up in 2010.

There is still a separate question whether Burris can get into court (as I noted last Thursday). Dellinger says:

The Supreme Court decision in the Powell case did leave open the possibility that a Congressional decision finding that a member was not properly elected — in this case, appointed — might be a “political question” immune from judicial review.

But that some reasons for denying Mr. Burris this seat might not be subject to review by the courts means that the Senate should take more care, not less.

Exactly. When the court finds a case nonjusticiable under the political question doctrine, it is because it reads the Constitution as committing a particular constitutional question to one of the political branches of government. It is decidedly different from rejecting a Constitution-based claim on the merits. It is saying that some other branch of government is the final authority on the meaning of a part of the Constitution, and that indeed means that the nonjudicial branch that has this responsibility must look at the Constitution and figure out what it means and then follow it.

It absolutely does not mean that the other branch can simply carry out its political will.... something you'd never guess from watching Harry Reid.

It's the new Bloggingheads — with me and Glenn Loury!

They've called this one "Slippery Issues." Topics:

Glenn decries Israel’s attack on Gaza
Will Palestinian nihilism end the Israel experiment?
The case for Senator Roland Burris
Caroline Kennedy and American plutocracy
Sex and politics in “Milk”
Ann detects a pedophilia trend in the Oscar-bait films

I'll pick out some choice clips and expand this post pretty soon. Meanwhile, you can watch the whole thing, if you like, at the link.

AND:

00:00: Hey, look how similar the backgrounds are. Does he always have that background, or did he copy mine as a subtle joke?

03:25: I ask a question that Glenn first calls "very good" and then calls "a part of this Orwellian discourse."

12:12: Glenn says "The Jewish state is an experiment." A complicated discussion follows, and you tell me if he's suggesting that the Palestinians can, by abject nihilism, cause the experiment to fail.

17:15: We both say that Roland Burris is the Senator from Illinois.

21:57: "The South Side became a steppingstone in the march of Obama into history," says Glenn, who's from the South Side of Chicago and who wonders whether the appointment of Burris reflects the ambivalence of all those the old Chicago politicians that Obama left behind. [ADDED: How do those old pols feel? Song cue.]

26:10: Why is there no more talk about Valerie Jarrett for the Senate position? I say: "I wonder what's in the tapes" — the Blagojevich tapes.

32:14: Glenn, the economist, answers all my questions about the stimulus package.

44:45: Glenn thinks "Milk" failed to depict the "ferocity of male sexual appetite."

52:26: I do my rant about prettified pedophilia in the movies:



55:10: I'm talking about Ricky Gervais insulting black people, and Glenn says: "Well, as a person who is obese..." And I'm all: Oh, no, you shouldn't say it. We're just heads here....

Burris blocked!

Just now.

That's it?

Senate Majority Leader Harry Reid, D-Nev., said Monday that Burris would not be permitted to take his seat because Burris "has not been certified by the state of Illinois," a reference to incomplete paperwork that only touches on the dispute. Senate Democrats maintain that Burris' appointment is tainted because of the charges against Blagojevich.

No explanation of the constitutional basis for the claim of power. I suspect the reason is that the constitutional argument is so weak. Burris was appointed pursuant to the processes that exist in state law.

ADDED: I had to cut this post short because I had a Bloggingheads recording scheduled. (It's not up yet, but we talked about Burris.) Anyway, let me note that I wrote about the constitutional question in some depth last Thursday. In that discussion, the assumption was that the Senate would go through some procedure — hearings, debate, a vote. But there was none of that, just a raw exercise of power. Ironically, Blagojevich is accused of abusing his power. Are we having an abuse of power contest?

"This is all politics and theater, but I am the junior senator according to every law book in the nation."

Roland Burris, rolling into town, and don't you dare try to stop him. He's got every law book on his side.

"Rightbloggers: Blago, Richardson Prove Obama Corrupt, Dems Racist."

I always enjoy Roy Edroso's pithy, pissy roundup of opinion in the "Right-Wing Blogosphere" in The Village Voice — especially when he includes excellent quotes from me.

Here's my post on his first one, which had Tom Tomorrow caricatures of all of us on what I assumed was some kind of Rightblogger A-List. There's a Tom Tomorrow caricature on today's column, but it's not of anyone from that A-List. Who the hell is that guy supposed to be? Tomorrow has a spiffy graphic style, but he's not the best at capturing a likeness — kind of a liability for a caricaturist. Is that supposed to be the left-winger's vision of the generic right-winger — a balding white guy in a desert-camouflage T-shirt? Or is that some actual guy I should recognize from Tomorrow's feeble visual cues?

So Harry Reid pressured Blagojevich not to appoint Jesse Jackson, Jr. — AKA "Candidate 5."

This happened before Blago's arrest. According to the Chicago Tribune. The reason — which does not make Reid look bad — is that Reid didn't think Jackson could win in a statewide election. It's that whole statewide election problem that seems to account for the lack of black Senators (when there are plenty of blacks in the House of Representatives).

But Blagojevich felt pressured to appoint a black person to Barack Obama's seat. It's one thing when only white candidates win those statewide elections, quite another for a Governor with the appointment power to pass over all the most prominent black politicians in his party.

The structural problem is obvious. Congressional districts are drawn to increase the power of black voters, with majority minority districts, and then the district is won by a black politician who designs his policies to appeal most strongly to these voters. In 2001, the radical Bobby Rush trounced Barack Obama in a congressional primary race:

Mr. Rush won the primary with 61.02 percent of the vote; Mr. Obama had just over 30 percent. Mr. Obama was favored by whites but lost among blacks, Mr. Lester said. Looking back, some say the magnitude of the loss reflected Mr. Obama’s failure to connect with black, working-class voters. Mr. Mikva said, “It indicated that he had not made his mark in the African-American community and didn’t particularly have a style that resonated there.”

Obama — the black politician who is atypically popular with white voters — was able to move directly to the Senate, bypassing the House. But the House has plenty of black representatives who, despite their accomplishments, can't move up to the Senate — at least not without a boost from a Governor with an empty seat to fill. And that Governor is pressured by his party not to put the black congresssman in the slot because he'll be too easy to defeat in the next statewide election. Ironically, what was supposed to increase the number of blacks in Congress works to keep them in the House.

I'm beginning to feel that Jackson was ripped off. Wasn't he the natural choice for the seat?

***

Meanwhile, over at the Chicago-Sun Times, Roland Burris said "We are the senator."

"There is no confrontation here, there is no antagonism here," Burris said in a phone interview from Chicago. "And so we are proceeding very diplomatically, and we are proceeding with all concern about not creating any type of circus that will entertain the media."

A circus? Will there be clowns???

"Burris will not be allowed on the Senate floor, according to this aide and a Senate Democratic leadership aide."

"The aide familiar with Senate Democratic leaders' plans said if Burris tries to enter the Senate chamber, the Senate doorkeeper will stop Burris. If Burris were to persist, either trying to force his way onto the Senate floor or refusing to leave and causing a scene, U.S. Capitol Police would stop him, said the aide. 'They (police) probably won't arrest him" but they would call the sergeant-at-arms,' the aide said."

So at at time when there isn't a single black person in the U.S. Senate, a black man arrives at the doorway and means to go forward to take what he believes is his rightful seat...



Great imagery, Democrats!

Roland Burris's monument...

... to himself.

AND: For comparison, check out the Howard Stern headstone. They had a "Secret Santa" thing on the radio show, and the guy that got Stern's name gave him that headstone with his picture on it. Hilarious! Howard did not like the gift at all and kept saying that he did not want to contemplate his own mortality.

The Senate has the power to exclude Roland Burris, say lawprofs Akhil Reed Amar and Josh Chafetz.

They look at Article I, Section 5 of the Constitution — which makes each house of Congress "the Judge of the Elections, Returns, and Qualifications of its own members" — and find a power to judge the Blagojevich appointment:

At the founding, Senators were elected by state legislatures. If the Senate believed that legislators in a given state had been bribed into voting for a particular candidate, the Senate could refuse to seat him.

Because of the word "returns" in Section 5, what is true of elected Senators is equally true of appointed Senators. According to the Oxford English Dictionary, a "Return" in the time of the framers involved a report of an appointment made by a sheriff or other official. If the Senate may refuse to seat a person picked in a corrupt election, it likewise may refuse to seat a person picked in a corrupt appointment process.

Amar and Chafetz need to deal with Powell v. McCormack, in which the Supreme Court said that the House did not have the power under Article I, Section 5 to refuse to seat Adam Clayton Powell. That case focuses on judging "qualifications," and the Court said that only relates to the qualifications specified in the Constitution — age, citizenship, and residency. Beyond those 3 qualifications, the people had the power to choose the representative they wanted. But Powell was clearly the people's choice, so what do you do with Powell when the governor appoints the new member? For an accurate analogy for the Burris appointment, imagine if the problem with Powell hadn't been that the members of Congress thought he was corrupt, but that they thought there had been a fraud in the election.

Now, the Powell case was about whether Powell could use the courts to override the decision to exclude him. The argument on the other side was that the House had the final call about the scope of the power to judge the qualifications of their own members. In that view, which the Court rejected, a vote to exclude already embodied the constitutional interpretation that they had the power. Our current discussion of the question of the scope of the power to exclude Burris will affect how the Senators think about the scope of their power, and articles like Amar and Chafetz's should embolden the Senators, and they may vote to exclude him. If that happens, Burris may sue in federal court, and then the court will have to decide whether the Senators' assessment of their own power is the final answer about the meaning of the Constitution.

But doubts about the scope of the Senate's power to look into the circumstances of the appointment may give the Senators pause. The vote to exclude Burris may fail — because of these constitutional doubts and for other reasons. If that happens, Burris will be seated and there will be no occasion for a court to discuss the scope of the exclusion power.

To be sure, there are plenty of other reasons to seat Burris. For one thing, if we rely on the theory that the Senators have the power to exclude him because the appointment process was corrupt, they will need to go through some sort of factfinding process. Blagojevich faces his criminal trial, but he is the duly elected governor of Illinois, with the power to appoint the Senator. What sort of parallel process in the Senate will be needed to make the exclusion legitimate?

In this context, the Senate itself is a judge, in the words of the Constitution, and can decide facts for itself. It need not follow the rules of criminal courts. That means it need not find Blagojevich guilty beyond reasonable doubt, as a court would if his liberty were in jeopardy. It is enough for the Senate to reject Blagojevich's appointee if a majority of senators are firmly convinced that Blagojevich is corrupt and that any nomination he might make is inherently tainted by such corruption.

If the Senators exclude Burris because they simply feel quite certain the appointment is tainted and not because they've gone through some impressive and fair factfinding, when — if — Burris goes to court to override their decision, Burris's argument about the scope of the power to exclude will look much more appealing. The Senate will need to argue that the court should defer, but the court will think less of this notion of deference if the process to be deferred to is not very impressive. Amar and Chafetz recognize this reality of litigation:

To make sure its ruling sticks, the Senate should follow its own procedures with due deliberation. Burris' case can be referred to a committee for careful review. He need not be seated while this committee does its work, and it will be very hard for Burris to persuade any federal judge to interfere in the meantime, especially if Senate Democrats and Republicans unite. With any luck, Blagojevich will be out of office soon enough and a new appointments process (or a special election) can begin that would supersede the attempted Burris appointment.

The delay itself is effective, but it does mire the Senate in an investigation of the Democratic governor. The argument will be made that the effort to exclude is more of a power grab than the governor's attempt to fulfill what is, after all, a duty of his office. Should the Senate Democrats want that? What a nasty preoccupation for Congress at what should be the fresh beginning of a new administration!

Amar and Chafetz make a good argument about the power to exclude but in doing so, they expose the political disaster it would be to vote to exclude.

ADDED: Lawprof Sandy Levinson puts it well:

I don't see how one can mount a good-faith argument against seating Burris unless one is willing to open each and every gubernatorial appointment to some kind of "good-government" scrutiny....

Should the motives of Gov. Patterson [sic] be subjected to relentless scrutiny if he bows to pressure to name Caroline Kennedy as a tribute to a dying senator and, in addition, to get access to the Bloomberg and Kennedy donor list that presumably comes with that appointment?

Beleaguered Blagojevich will go ahead and appoint a Senator: Roland Burris.

"Mr. Burris, 71 and a Democrat, is a longtime political player in this state, who has run for governor before, including mounting a primary challenge against Mr. Blagojevich. Mr. Obama backed him over Mr. Blagojevich in that race."