The Supreme Court Won’t Force Senate to Seat Blago’s Choice

Several commentators have suggested that the Senate cannot constitutionally refuse to seat Roland Burris, Illinois Governor Rod Blagojevich’s choice for Barack Obama’s vacant Senate seat. 

I disagree.

The belief that the Senate cannot constitutionally refuse to seat Roland Burris is based on the Supreme Court’s decision in Powell v. McCormack, 395 U.S. 486 (1969), where the Court held that the House of Representatives could not refuse to seat Adam Clayton Powell, an enormously popular African-American Congressman from Harlem who had won reelection despite a scandal involving misappropriating public funds and being held in contempt by a state court. 

But while the Powell case would certainly be at the center of any attempt to force the Senate to seat Burris, whether it is the controlling precedent that some commentators have suggested is far from clear. 

Powell was decided a very long time ago, in a very different factual and political context, and by a very different Supreme Court.

There are also significant differences between the facts in Powell and the situation of Roland Burris.

In Powell, the Supreme Court found that “in judging the qualifications of its members, Congress is limited to the standing qualifications prescribed in the Constitution. … Therefore, we hold that, since Adam Clayton Powell, Jr., was duly elected by the voters of the 18th Congressional District of New York and was not ineligible to serve under any provision of the Constitution, the House was without power to exclude him from its membership.”

Unlike Adam Clayton Powell, Burris was never elected, a fact that undercuts the Powell Court’s rationale that “A fundamental principle of our representative democracy is, in Hamilton’s words, ‘that the people should choose whom they please to govern them.’ … [T]his principle is undermined as much by limiting whom the people can select as by limiting the franchise itself.” 

In addition, although Powell was charged with misappropriation and fraud, no one questioned whether the election process itself was tainted by bribery or corruption. 

In contrast, the Senate’s refusal to seat Burris (or anyone is selected by Blagojevich) is based on allegations of bribery and corruption in the appointment process itself. 

The Court in Powell found that “Congress is limited to the standing qualifications prescribed in the Constitution. Respondents concede that Powell met these. Thus, there is no need to remand this case to determine whether he was entitled to be seated in the 90th Congress. Therefore, we hold that, since Adam Clayton Powell, Jr., was duly elected by the voters of the 18th Congressional District of New York and was not ineligible to serve under any provision of the Constitution, the House was without power to exclude him from its membership.” 

In the current situation, not only was Burris not “duly elected by the voters,” but the Senate is specifically empowered by the Article I, Section 5 of the Constitution to judge whether the election process  — or in this case, the selection process – of its members meets Constitutional standards: “Section 5: Each House shall be the judge of the elections, returns and qualifications of its own members…”

The extra-legal contexts of the Powell case and the Burris appointment are also vastly different. 

Adam Clayton Powell , Jr., had been an outspoken advocate for civil rights since the early 1940s and had many distinguished and powerful supporters, including many of his fellow members of the House of Representatives.  Many believed that the House’s refusal to seat Powell was based on racism.

While these factors were not an explicit part of the Supreme Court’s reasoning in the Powell case, they surely played a role in the Court’s decision.  In this instance, Burris stands virtually alone, and no one (with the possible exceptions of Rep. Bobby Rush, Governor Blagojevich, and perhaps Burris himself) could seriously question whether the Senate’s stated refusal to seat him has anything to do with his race. 
 
In any event, it is unlikely that the Burris appointment will ever make it to the Supreme Court.

There will almost surely be a new Governor of Illinois by the time the Burris appointment would reach the Supreme Court.  At that point, Burris’ claims might be moot — or the Supreme Court would have to resolve the separate question of whether an impeached (or resigned) governor’s Senate appointment can be rescinded by the subsequent governor. 

My assessment is that the Powell case offers little or no guidance in predicting what the current Supreme Court would do if Burris insists on taking the seat.

My guess is that, given the potential damage to the Democratic Party and specifically to Barack Obama, Burris will end up not pushing it to that point.

The Israeli Offensive in Gaza: For What Goals And At What Cost?

Many Americans think that there is a single Israeli or Zionist position on how to deal with Hamas and the continuing rocket attacks from Gaza on Israeli civilians.  Most Americans also assume that this position is that of the Israeli government.

This belief could not be further from the truth.

 

In fact, within Israel, and among dedicated Zionists, there is a wide range of opinion, especially concerning the use of military force, and specifically regarding the current Israeli military offensive in Gaza.

One of the more reasonable voices among Israeli Zionists is that of Haaretz, a center-left newspaper that is published in both Hebrew and English.

Their editorial on the Israeli offensive in Gaza, which I have reprinted below, is well worth reading.

Note that Haaretz does not condemn the use of force per se, but insists that the use of military force must be conditioned on whether such force is likely, or even possible, to lead to the supposed objectives of the mission.

Like the United States in Vietnam, or now in Iraq, Israel has often used the blunt instrument of its superior firepower for objectives that cannot be accomplished by military means.

What this means is that, once again, hundreds, if not thousands, of lives, both Israeli and Palestinian, are lost, while accomplishing nothing that will lead to either stabilization or peace. 

Here is the Haaretz editorial:

Define the Objectives in Gaza

The government launched a military campaign in Gaza yesterday. In the first wave of aerial assaults, more than 200 Palestinians were killed and Hamas’ retaliatory fire killed one Israeli civilian from Netivot. Hundreds were wounded on the Palestinian side, as were dozens of Israelis. “This is the time for battle,” the defense minister said in highlighting the new reality that has taken hold in recent weeks in Sderot, Ashkelon, and the western Negev.

It is possible to understand the logic of the Israel Defense Forces response. It did not need the inflammatory rhetoric of the news media, which often acted like cheerleaders competing with one another. Nor did it need the winds of the election, which propels the sails of headline-hungry politicians. The residents of the western Negev, who have lived in fear on a daily basis, petrified elementary school children, and the constant violation of a soverign state’s territory – these are what provide legitimacy for the operation.

But understanding is no substitute for wisdom, and the inherent desire for retribution does not necessarily have to blind us to the view from the day after. The expression “time for combat” still does not elucidate the goals of the assault. Does Israel seek to “just” send Hamas a violent, horrifying message? Is the intention to destroy the organization’s military and civilian infrastructure? Perhaps the goal is far-reaching to the point of removing Hamas from power in Gaza and transferring rule to the Palestinian Authority, headed by Mahmoud Abbas? How does Israel intend to realize these goals? The aerial assault on its own, as one may recall from the Lebanon War, cannot suffice. Does the IDF plan on deploying thousands of soldiers in the streets of Gaza? And what will the number of casualties be at this stage?  
 
A public that has learned from experience cannot assume once again that the government knows what it is doing, particularly since its leaders have struggled in formulating a consistent stance in recent weeks. That same public knows well, and not only from the Lebanon experience, that working toward long-term goals that would completely change the landscape in the region, like toppling Hamas from power in Gaza, is liable to turn out to be a wild fantasy. It would be best to make do with immediate goals and with measured, calculated accomplishments that could restore quiet, particularly the cease-fire Israel enjoyed for five months, which enabled Gaza residents to lead reasonable lives.

Israel’s violation of the lull in November expedited the deterioration that gave birth to the war of yesterday. But even if this continues for many days and even weeks, it will end in an agreement, or at least an understanding similar to that reached last June. Hamas’ terms for calm have not changed: a cessation of the attacks on Gaza and the organization’s activities in the West Bank, a reopening of the Gaza border crossings, and a release of Palestinian prisoners. Israel’s demands will also remain as they were: a halt to rocket attacks on its towns. It would behoove both sides to enlist every possible mediator – from Egypt to Qatar to the United States and Europe – to implement those terms. One may assume that the military message Israel sent was fully understood. It would be best not to turn it into a disaster that would preclude a future agreement.

(Bring Them) Home for Christmas

One of the most popular Christmas songs is I’ll Be Home for Christmas, but few recall that the song is about war and the sadness of soldiers away from home.

Recorded in 1943 by Bing Crosby, during the darkest days of the Second World War, the song became the most popular Christmas song for American soldiers, sailors, and marines serving overseas. 

This Christmas, whenever I’ve heard the lyrics:

“I’ll be home for Christmas.
You can count on me.
Please have snow and mistletoe
And presents under the tree.
Christmas Eve will find me
Where the love-light gleams.
I’ll be home for Christmas
If only in my dreams”

I think about the American soldiers, sailors, and marines now serving in the war zones of Iraq and Afghanistan, and about their families missing them on Christmas morning.

I also think about the more than 4,000 American service men and women who won’t ever be coming home for Christmas.

I’m sure, like the rest of us, President-elect Obama has heard I’ll Be Home for Christmas countless times this season.

I hope he hears what I hear.

Merry Christmas (Peace on Earth).

Davy Graham (1940-2008), Guitar Legend

Legendary acoustic guitar player Davy Graham died today.

He was 68.

As his official website notes, Graham was “Revered by several generations of guitarists, he invented the Folk -Baroque style, invented a modal tuning system for the guitar called DADGAD and composed the signature tune of the sixties folk revival, Anji” (most famously recorded by Paul Simon on the album The Sounds of Silence; my personal favorite version is by fellow British guitar wizard Bert Jansch).

While many celebrated guitar players, including Jimmy Page, Bert Jansch, John Renbourn, Martin Carthy, and Richard Thompson, acknowledged Graham’s playing as a primary source of influence and inspiration, Graham never achieved (or sought) wide popular recognition or commercial success.  His style combined a mastery of the blues and traditional English folk music, and if you’ve heard any of the musicians listed above, you’ve heard the influence of Davy Graham.

Though he was generous and open with fellow musicians, Graham was often also cranky and cantankerous, and his decades-long struggles with alcoholism and drug addiction made him undependable and unpredictable as a live performer.

You can watch a video tribute to Graham from the Guardian here.

I’ve been listening to his music all afternoon.

If you love the sound of the acoustic guitar, if you’re a fan of the blues or traditional folk music, and if you’ve never heard of Davy Graham, this would be a good time to seek out his music and give it a listen.

If you know Davy Graham’s music, this would be a good time to listen again.

The Meaning of Obama’s Choice of Rick Warren as America’s Pastor-in-Chief

What does his choice of Pastor Rick Warren from Saddleback Church to give the invocation at his inauguration tell us about Barack Obama?

First, it tells us that with Obama, what you’ve seen (and heard) from him is what you’ll get.

Many on the left projected their own politics on to Obama, believing that his explicitly stated socially conservative positions (such as his opposition to same sex marriage) were mere tactical ploys intended to broaden his electoral appeal and assuage the fears of socially conservative voters.

Their thinking (or wishing) was that, once elected, Obama would be free to reveal his true, more socially progressive self.

But Obama’s choice of Rick Warren as America’s new Pastor-in-Chief makes that kind of thinking or hoping obsolete.

Second, it tells us that Obama meant it when he said that he would attempt to create a coalition government, which in our current political climate also means a government tilted more toward the center-right than the center-left.

Rick Warren represents precisely the kind of centrist politics that Obama has embraced and that his administration will pursue.  As the New York Times noted, while Warren is “is an outspoken opponent of abortion and same-sex marriage,” he “has also been one of the most prominent evangelical leaders calling for Christians to expand their agenda and confront global problems like poverty, AIDS, climate change and genocide in Darfur.”

As the Times observed, Obama’s anointment of Warren “positions Mr. Warren to succeed Billy Graham as the nation’s pre-eminent minister” – and means that the social gospel of alleviating poverty and accepting stewardship over the environment will be priorities of the Obama administration.

It should also be noted that on these issues, if not on style, Obama’s adoption of Rick Warren as his new favored pastor is not a great change from his earlier association with Jeremiah Wright, who forcefully opposed the decision of the General Synod of the United Church of Christ to perform same sex marriages, “calling the same-sex marriage issue a distraction that diverted attention from other, more important issues such as health care and poverty.”

On these “more important” issues, Rick Warren can give Obama immense help, and Obama is clearly willing to trade gay and abortion rights in exchange for Warren’s high-profile support for his efforts in the areas of poverty and the environment.

Third, it tells us that those who want a more socially progressive America, especially in regard to gay rights, will not be able to rely on top down change initiated by the Obama administration.  Those who expected the election of Barack Obama to usher in a new America of gay rights, workers rights, single-payer universal heath-care and an end to colonialist wars need to redouble, rather than slacken, their grass-roots efforts.

As Obama said many times during the campaign, real change comes from the bottom, not the top.

Winners and Losers 2008

Here is a list of winners and losers for 2008.

As befits a year in which the economy collapsed and wars dragged on, the list of losers is longer than the list of winners.

Two names made the list of both winners and losers.

Feel free to add or subtract names and to add commentary.

The year isn’t over, so the list may change.

Winners

Barack Obama
Michelle Obama
Hillary Clinton
Rachel Maddow
Pixar
Bankruptcy lawyers
Facebook
Robert Gates
Jonas Brothers
Bill Ayers
Heather Mills
Sarah Palin
Democrats
Beyoncé
Harrison Ford
Joe Biden
Robert Downey, Jr.
The Taliban
Mexican drug cartels
Prisons
AIG
Lawrence Summers
David Axelrod
Rahm Emanuel
Paul Volker
Vladimir Putin
Tom Daschle
John Podesta
Britney Spears
Keith Olbermann
C.C. Sabbathia
Philadelphia Phillies
Brett Farve
will.i.am
Eli Manning
Bank of America
Christopher Buckley
Walmart
Mark Begich
Muntadhar al-Zaidi
Somali pirates
Guy Ritchie
Emo vampires
Carla Bruni
Google
Tom Udall
Mark Udall
John Kerry
Al Gore
Kay Hagan
Mickey Rourke
Mike Huckabee
Jeff Merkley
Michael Phelps
Jason Lezak
Heath Ledger
Rafael Nadal
Repo Men
Global warming
Handguns

Losers

OJ Simpson
Bernard L. Madoff
Anthony Pellicano
George W. Bush
John McCain
Republicans
Alan Greenspan
Realtors
Iraq
Paul McCartney
Newspapers
Local television
Fannie Mae and Freddie Mac
William J. Jefferson
Circuit City
Lehman Brothers
Detroit
John Edwards
Myspace
Steve Schmidt
Chinese milk
Star Wars
Yahoo
Wachovia Corp.
Washington Mutual
Karl Rove
Sam Zell
Richard H. Davis
U.S. Automakers
The South
Mortgage brokers
Ben Bernanke
Henry Paulson
Same Sex Marriage
Merrill Lynch
Book publishers
Airlines
Homeland Security
Rush Limbaugh
The Fed
Britney Spears
Rod Blagojevich
Scooter Libby
Bill Clinton
Jeremiah Wright
Mitt Romney
Jesse Jackson
Jesse Jackson, Jr.
Las Vegas
California
Arnold Schwartzeneggar
Eliot Spitzer
Gordon Smith
Raffaello Follieri
Workers
Sarah Palin
Ted Stevens
Washington Mutual
Yeshiva University
Africa
India
Bill O’Reilly
New York Mets
Plaxico Burress
Broadway
Phil Gramm
Museum of Modern Art (MOCA) Los Angeles
Mikheil Saakashvili
Christopher Cox
Joe Lieberman
Jewish charities
Public schools
Community colleges
John E. Sununu
Elizabeth Dole
Miley Cyrus
Countrywide
Angelo Mozilo
Max Mosley
Kwame Kilpatrick
Heath Ledger
Roger Clemens
Baytown, Texas
Galveston Island, Texas
Missouri
The Bill of Rights

Rush Limbaugh Offers New Hope for Progressives Nervous about Obama’s Cabinet

Rush Limbaugh, of all people, has offered renewed hope to progressives, such as Frank Rich, Tim Carpenter and others, who are nervous about the centrism of Barack Obama’s cabinet picks.

According to Limbaugh, Obama’s centrist cabinet selections are merely a smoke screen for his plans to radically reconstruct America along progressive economic and social lines and finish the job that Franklin D. Roosevelt started in his New Deal.

Forget about the middle-of-the-roaders, recycled Clintonistas and (even) Republicans in Obama’s cabinet, Limbaugh says.  What Obama means to do is lead America to a new, bigger and more sweeping New Deal that will embrace and revitalize the progressive governmental activism of the early years of the Roosevelt administration.

To this end, Limbaugh insists that Obama actually wants the economic crisis to get worse before he takes office.  That’s why, and not because of an abstract belief that America has only one president at a time, Limbaugh says, Obama has not moved more forcefully to influence economic policy prior to his inauguration.  Limbaugh claims that Obama figures that the more desperate the country’s economic crisis, the easier it will be for him to achieve his goal of transforming the government into an engine of progressive economic and social activism.

What Limbaugh suggests is that Obama is planning on a progressive version of Naomi Klein’s “shock doctrine” of disaster capitalism, in which “‘only a crisis – actual or perceived – produces real change’.  When that crisis occurs, the actions taken depend on the ideas that are lying around. Some people stockpile canned goods and water in preparation for major disasters; [Milton] Friedmanites stockpile free-market ideas. And once a crisis has struck, the University of Chicago professor was convinced that it was crucial to act swiftly, to impose rapid and irreversible change before the crisis-racked society slipped back into the ‘tyranny of the status quo’. ”

Except that in this instance, it won’t be conservatives and Friedmanites who are employing the disaster capitalism shock doctrine, but progressives.

The irony, of course, is that it was the use of the shock doctrine of disaster capitalism (in the Reagan years and beyond) — in which corporations systematically exploited the state of fear and disorientation that accompanies shock and crisis to remove regulations and government oversight of their activities — that produced the economic mess were in now.

Another way to look at Limbaugh’s argument it is that Obama is using the current economic crisis as his own 9-11, hoping that the fear generated by economic disaster will force his opponents to capitulate to fundamental changes that in other, safer times they would have obdurately refused to accept.

Thanks, Rush.

I hope you’re right.

Best American Car Songs (Now with Video Links!)

The news about the death of the U.S. auto industry has gotten me thinking about all the great music that American cars have inspired.

Here is a list of some of my favorites:

Pink Cadillac (Bruce Springsteen)
Fun Fun Fun (Beach Boys)
Little Deuce Coupe (Beach Boys)
You Can’t Catch Me (Chuck Berry)
Brand New Cadillac (The Clash)
Mud on the Tires (Brad Paisley)
Long White Cadillac (Dave Alvin)
Mercury Blues (Alan Jackson)
Little Red Corvette (Prince)
Guitars, Cadillacs (Dwight Yoakam)
Hot Rod Lincoln (Junior Brown/Commandor Cody)
Mustang Sally (Wilson Pickett)
Ball and Chain (Social Distortion)
Thunder Road (Bruce Springsteen)
Pontiac Blues (Sonny Boy Williamson)
Racing in the Streets (Bruce Springsteen)
Rocket 88 (Jackie Brenston with Ike Turner)
Chevrolet (Donovan)

409 (Beach Boys)
Dead Man’s Curve (Jan and Dean)
Surf City (Beach Boys)
Blue Chevrolet (Beat Farmers)
Gun Street Girl (Tom Waits)
16 Shells from a Thirty-Ought Six (Tom Waits)

Feel free to add your own.

One rule:

The song must mention a particular American car or car company.

Prop 8 Backlash (Part 2): How the Mormon Church Silences Opposition

It is not safe to be a Mormon who disagrees with the anti-gay political activism of the Church of Latter Day Saints.

When I wrote a blog post on the backlash against the LDS Church because of its activist role and financial support for California’s anti-gay marriage Proposition 8, I received numerous responses from Mormons who said that they were afraid to speak out against the LDS Church’s anti-gay activism.

Many said that they were opposed to the LDS Church’s position on gay rights, but could not make their opposition public for fear of attacks on themselves and their families. 

If their opposition to the church, and their support for gay rights, became known, “in Mormonland [it] could get me in a lot of trouble.”

Especially troubling to Mormons who disagree with the LDS Church’s position on gay rights are threats to their families if they dare to make their disagreement public.

One Mormon wrote: “as you may have perceived, the Mormon Church is highly centralized/organized and church members are easy to trace via computer records. Church members are free to say anything we like privately (of course), but once our critical opinions become public, we are setting ourselves up for estrangement and possible excommunication.”

“For those of us who have long been at odds with the church on issues of racism, homophobia, and sexism, this is no longer much of a threat. However we restrain ourselves out of consideration for family members who believe that excommunication means that we will no longer be together as an extended family in the hereafter.”

“Mormon authorities achieve [suppression of opposition] through the threat of disfellowshipment (a lesser form of shunning) or excommunication.  Several of my acquaintances have been excommunicated for comments that became public, so I know from experience that this is not an empty form of retribution.”

At a time when supporters of Proposition 8 and the anti-gay activism of the LDS Church are now hypocritically accusing anti-Prop 8 supporters of bigotry, more should be known about how the LDS Church silences opposition within the LDS community.

If you are a member of the LDS Church, or have LDS family members, and are opposed to the official LDS anti-gay theology and activism, please comment, anonymously or using a pseudonym if you think it is necessary.