Friday, January 2, 2009

Do Nepotism, Wealth and Dynastic Power "Taint" Kennedy's Likely Senate Appointment? Taking Reid's Arguments Where He Wouldn't Want Them to Go

Just Call Me "Prophet"
Back on December 17, 2008, I made the following observation in response to Caroline Kennedy's freshly launched (and somewhat shameless) "campaign" to fill Hillary Clinton's Senate seat:
I think she will likely get it. Why would she go public unless she expected the job? Besides, Obama personally called Paterson and supported her candidacy -- pre-Blagojevich. If you are deeply cynical, you might even believe that she has made her desire public in order to appear "transparent" and avoid having her inevitable selection look like a backroom deal. But what do I know about deep cynicism?
Well, it appears that the likely already-done deal is now almost officially done. According to an Associated Press article republished on MSNBC.Com, Governor Paterson will likely choose Kennedy for the slot and will soon announce his decision.

Taint That A Shame?
Because the Democrats have now implemented a "zero-tolerance" policy that bans "taint" in the Senate, I wonder whether any of them will argue that Kennedy possibly (remember, a mere possibility of wrongdoing can "taint") got the position based on her family's wealth, political power and fame, which she leveraged to force Paterson's hand.

I am not arguing that this happened, but Senate Democrats have forcefully claimed the power to block any vacancy appointment that could appear "tainted" -- even in the absence of a finding of any specific wrongdoing by the appointed or the appointer. Reid's taint argument could therefore justify my "hypothetical" nepotism challenge to Kennedy's selection. But I guess this is why I am a law professor rather than a politician.

Food for Thought
How long will it take before some irreverent person makes this argument:
Senator Reid, you should not accept the appointment of a relatively inexperienced, but extremely powerful and wealthy white woman who hails from a political dynasty, while blocking the appointment of an experienced black male of modest economic beginnings who, absent your shenanigans, would become the nation's only black Senator.
Well, it seems that I just made the argument. Perhaps this angle could help kill this unnecessary diversion. And maybe Blagojevich knew this was coming and made a decision that would make this argument relevant.

PS: I know I said the Senate should drop this issue, but I am not a Senator, and (more importantly) I feel compelled to point out potential contradictions and hypocrisy among our leaders. Hard work - but someone must do it.

Related Readings on Dissenting Justice:

So When Exactly Does "Change" Arrive? Senate Battle Over Burris and Blagojevich Offers "More of the Same"!

Some Media Outlets Begin "Palinizing" Roland Burris

Defiant Blagojevich Names Obama's Successor: Decision Raises Political and Constitutional Questions

Like It or Not, Democracy Prevails: Illinois Supreme Court Refuses to Declare Blagojevich Unfit to Serve

Blago Impeachment: What Would Lincoln Do?

Playing or Paying Politics: Blagojevich, Political DealMaking, and the Difficulty of Drawing Lines

Pick Me! Caroline Kennedy Officially on the Job Market


Anonymous said...

Ah let her have it. We need another wealthy politician in Washington - one with more than seven homes, or at least one who could afford many more.

Nell said...

Exactly, Darren. If Burris's appointment is subject to the taint-test, does it mean that every gubernatorial appointment going forward must stand up to "free of any whiff of suspicion" scrutiny? When one thinks of the number of past appointments made solely on the basis of nepotism (e.g. wives replacing husbands, children replacing fathers), to suggest that
Burris is any more tainted than those appointees is beyond disingenuous.

It is clearly transparent that Paterson's willingness to appoint Caroline Kennedy smacks of self-interest. Since he did not assume the governorship of New York by direct election himself, he very much wants to be elected in his own right two years from now. Running on the same ballot as a Kennedy and having access to the powerful Kennedy fund-raising machine (not to mention Bloomberg's as well) can only work in Paterson's favor.

As a lawyer, when I read the specious legal arguments being made in favor of denying Burris his Senate seat, I can only think it is no wonder that the lay public believes we're all too cute by half!

Darren Lenard Hutchinson said...

Nell -- your words rock. I have nothing else to add except: thanks for contributing, and please drop by again.

Nell said...

Since finding your site a few weeks ago, I have been a regular reader and have contributed once or twice. Thank you for your kind words, Darren.

Since the Burris controversy began, I have been appalled at the willingness of fellow legal scholars to distort both Article I, Section 5 itself and its interpretation in Powell v. McCormack in order to deny Governor Blagojevich his legal authority in appointing a Senate replacement for Barack Obama. Immediate political gain should not trump the establishment of disastrous legal precedent.

Most of the Senate leaders opposing Burris's appointment are lawyers. How difficult is it for them to understand the clear and concise text of the 17th amendment?

Darren Lenard Hutchinson said...

I am even more appalled that many of them do not even mention the 17th Amendment! And I agree that it's all about momentary political gain, but I do not believe our politics should make us intellectually inconsistent. Illinois had the opportunity to strip the governor of the power - but they were "political" and feared having a Republican governor. Members of the Senate are being "political," because they want to smear Blagojevich and probably set up someone else in the seat - so they distort the constitution too. Unfortunately, people like Pat Buchanan who have nothing to gain from this (except maybe to disagree with Reid) have made some of the soundest arguments on the subject.

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