Daniel Larison is a bit too charitable here in assessing Mike Huckabee’s finish in last year’s presidential primaries:

While Huckabee was officially the second-biggest vote-getter in the primaries last year, he achieved this mostly through perseverance and concentrated support from evangelical voters. Had Romney continued to compete and waste his money on what would still have been a losing bid, it is not certain that Huckabee could have managed his second place finish.

In fact, the 2008 Republican race wasn’t even a contest.  Mitt Romney quit the race during CPAC on February 7 and pledged his delegates to McCain.   Rudy Giuliani had failed to make his push in Florida — coming in way behind Romney, who finished second.  The race was over.

Except that, technically, it wasn’t.  Huckabee stayed in the race, along with Ron Paul, despite no chance of beating John McCain for the nomination.  As a result, they padded their totals as everyone not happy with McCain as the nominee had to vote for one of them.  And, really, since Paul was a fringe candidate, that meant Huckabee.

The results, per CNN, are at right.

The fact of the matter was that Huckabee, a virtual unknown at the beginning of the contest, was mostly a stalking horse.  Huckabee finally withdrew on March 5, once McCain mathematically sewed up the race on his own — that is, not counting Romney’s delegates.   As I wrote at the time:

But let’s not get carried away, either. He’s a personable fellow who went a long way with very little money, a weak organization, and zero Establishment support. But there was no time in this race when it was plausible that he’d be the nominee. He won Iowa as the “anybody but Mitt Romney” candidate in a contest McCain, Giuliani, and others skipped. He didn’t win again until garbage time, when he was running as “the conservative alternative” to a man who had all but sewn up the nomination.

Huckabee will not win the nomination in 2012. Or 2016. Or 2020. He’d easily win a Senate seat from Arkansas if he changes his mind. But he’s not going to be elected president.

I  stand by that assessment.

Sam Stein reports that “Democrats are bracing themselves for a new line of conservative attack against a provision in the health care legislation once considered so non-controversial that it was endorsed by several major Republican officials.”  What is it, you might ask, that these dastardly Republicans are opposing out of their racist hatred of Barack Obama?

On Tuesday, Sen. Jon Kyl (R-Ariz.) described the health care legislation being considered by the Senate Finance Committee as a “stunning assault on liberty” due to a provision that would require individuals to buy insurance.  Earlier in the week, the individual mandate also came under attack when Tim Phillips, who heads Americans for Prosperity, described it as an assault on individual liberty. “When you have health care, that’s a choice that impacts yourself,” Phillips told MSNBC’s Hardball. “Drivers’ insurance impacts other drivers you may have accidents with.”

The attacks have confounded Democrats in and out of government, who noted quickly that mandating coverage was, until recently, a relative given when it came to health care reform.  “It’s f–ing ludicrous,” said one health care reform activist, who noted that when Finance Committee Chairman Max Baucus (D-Mont.) asked committee members to air their disagreements with an individual mandate during a meeting on May 5, no one chimed in.

Indeed, for months it was presumed that a relatively ironclad deal was in place: in exchange for the government mandating coverage, private insurance companies would agree to cover individuals with pre-existing conditions. The arrangement was all but blessed by prominent figures from within the GOP ranks. In mid-August, the ranking member of the finance committee, Sen. Chuck Grassley (R-Iowa), announced that the way to get universal coverage is “through an individual mandate.” “That’s individual responsibility,” the senator told Nightly Business Report. “And even Republicans believe in individual responsibility.”

So, Chuck Grassley and at least six other Republicans currently in the Senate support — or at least are willing to sign off on –  a law forcing Americans to buy health insurance.  But that hardly renders it “non-controversial.”

Indeed, this provision was incredibly controversial during last year’s Democratic presidential primaries.   Indeed, only John Edwards and Hillary Clinton supported mandates.  Among those opposing?  Barack Obama and Joe Biden who, as some will recall, went on to win the presidential and vice-presidential nominations, respectively, of the Democratic Party and go on to win election to those offices.

John Judis for The New Republic in June 2007:

Obama’s health care plan, which he announced last week, has been widely criticized by liberals for not making health insurance mandatory. Challenged by Edwards, Obama explained why a mandate is not a cure-all. “If you look at auto insurance, in California there’s mandatory auto insurance,” Obama explained. “Twenty-five percent of the folks don’t have it. The reason is because they can’t afford it. So John and I, we’re not that different in this sense; that I’m committed to starting the process. Everybody who wants it can buy it and it’s affordable. If we have some gaps remaining, we will work on that. You take it from the opposite direction, but you’re still going to have some folks who aren’t insured under your plan, John, because some of them will simply not be able to afford to buy the coverage they’re offered.”

Ron Chusid summarizes the intra-liberal debate on the subject in Liberal Values, February 2008

Paul Krugman continues his vendetta against Barack Obama’s health care plan due to its lack of mandates. The consequence of lacking mandates is unclear as nobody knows for sure how many people would still go without insurance if it was affordable but voluntary, and nobody really knows for sure how many people would remain uninsured despite mandates. It does seem reasonable to assume that achieving near one hundred percent compliance with a mandate would require yet another new bureaucracy and the expenditure of funds which might better be used for actual health care.

There are a variety of views as to whose plan would really insure more people. Robert Reich has argued that more people would wind up being covered under Obama’s plan than Clinton’s.

[...]

Using mandates to achieve universal coverage seems like quite a cop out to me. Regardless of whether the plan is good or the plan stinks, universal coverage is achieved because the government forces you to join up. In contrast Obama takes on the challenge of offering a plan so good that virtually everyone will want to participate to receive health coverage. There is also a clear philosophical difference here in that Obama isn’t obsessed with having every single person sign up. In contrast, a self-proclaimed government junkie like Hillary Clinton just can not live with the fact that somewhere, someone decides they do not want her help. Clinton will help them whether they want her to or not.

I know Clinton supporters will scream that I’m using right wing frames here, but again I must point out that freedom and choice should be considered virtues, not right wing frames. Liberty is what liberalism is ultimately all about, which explains whey Clinton prefers to label herself a progressive and not a liberal.

Some on the far left claim that Democrats lose when these alleged right wing frames about freedom are employed. They got it all wrong. Democrats lose when they concede traditional liberal values such as liberty to the right. If an election is framed so that one side is allowed to be defined as the party of freedom, that party will win virtually every time. Democrats have lost so many elections not because of using right wing frames, but because of conceding values such as freedom to conservatives, even though conservatives talk about freedom without really supporting it.

Ryan Lizza explains why Biden agreed to be Obama’s running mate for The New Yorker in October 2008:

Biden was impressed that Obama’s proposals seemed to be written with an eye toward passage in Congress. (For instance, the lack of a mandate in Obama’s health-care proposal could make the idea more palatable to Republicans.) During the primaries, Biden often played the role of policy grownup, the candidate who liked to chide the unrealistic plans of his rivals.

On July 17th, PoliFact’s Truth-o-Meter awards Obama a full-on flip flop on the issue:

Walk back with us through the mists of time to early 2008, and you might remember then-candidate Barack Obama defending the rights of hard-working people so they would not be forced to buy health insurance.

Obama’s position was different from his two nearest rivals, Hillary Clinton and John Edwards, who included mandates for individuals to buy health insurance in their plans for reform. It was an issue that got downright contentious on the campaign trail.

At a debate in South Carolina, Edwards said Obama’s plan really wasn’t universal health care, since it didn’t have a mandate to ensure everyone was covered.

Obama replied that his plan was universal (a claim we rated Barely True ) and explained why he was against a mandate: “A mandate means that in some fashion, everybody will be forced to buy health insurance. … But I believe the problem is not that folks are trying to avoid getting health care. The problem is they can’t afford it. And that’s why my plan emphasizes lowering costs.”

Obama said at the time it was possible some people would refuse to buy health care under his plan.

“It’s true that some people could game the system by just waiting till they get sick and then they show up,” Obama said. “But keep in mind that my plan also says children will be able to stay on their parents’ plan up until the age of 25. And so I don’t believe that there are a whole bunch of folks out there that will not get coverage. And John, both you and Hillary have a hardship exemption where, if people can’t afford to buy health care, you exempt them so that you sort of don’t count them.”

Now, I don’t much care about the flip-flop.  The debate has moved over the past two years, as has the political make-up of the Congress.  Obama may well have been legitimately persuaded that his best chance of getting what he wants it to accede to a mandate.

But let’s not rewrite history, either.  Forcing Americans to buy health insurance regardless of whether they want it or can afford it is extremely controversial, with not only Republicans but most of the Democratic contenders for the presidency in 2008 opposing it.

UPDATE: Headline of the Day honors go to Bill Quick for “Mandating Change Without Hope.”

In a 5-0 decision, the state’s highest court ordered that Al Franken be declared the winner.

The Minnesota Supreme Court ruled today that Democrat Al Franken won the U.S. Senate election and said he was entitled to an election certificate that would lead to him being seated in the Senate.

“Affirmed,” wrote the Supreme Court, unanimously rejecting Republican Norm Coleman’s claims that inconsistent practices by local elections officials and wrong decisions by a lower court had denied him victory.

“Al Franken received the highest number of votes legally cast and is entitled [under Minnesota law] to receive the certificate of election as United States Senator from the State of Minnesota,” the court wrote.

No surprise, really.  One would think Norm Coleman about out of options but this thing has managed to go on seemingly forever.

I’ve maintained from the beginning of this fiasco that 1) the election was for all intents and purposes a tie and 2) Coleman, who was ahead when the initial counting stopped — and after the initial recount! — and saw some really weird things go against him, had every right to fight this in court but that 3) it has long been apparent that Franken was going to win and all Coleman’s tactics were achieving was denying Minnesotans their just representation in the Senate and therefore 4) he should have quit this farce some time back.  It’s time to accept the inevitable and move on.

UPDATE:  Coleman has conceded.

“The Supreme Court has made its decision and I will abide by the results,” Coleman told reporters outside his St. Paul home. “In these tough times we all need to focus on the future, and the future is that we have a new United States senator,” Coleman said.

Andrew Sullivan writes that “No Recognition Of Ahmadinejad” must be considered “the first and absolute requirement of all Western governments.”

In my New Atlanticist post “Negotiating with Iran without Preconditions,” I recall this famous exchange from the July 24, 2007 CNN/YouTube debate:

More commentary and analysis at the link.

Arlen Specter is switching party labels to go along with having long switched sides ideologically.  There have been rumors on Twitter all morning and WaPo’s Chris Cillizza has confirmed.

Pennsylvania Sen. Arlen Specter will switch his party affiliation from Republican to Democrat and announced today that he will run in 2010 as a Democrat, according to a statement he released this morning.

Specter’s decision would give Democrats a 60 seat filibuster proof majority in the Senate assuming Democrat Al Franken is eventually sworn in as the next Senator from Minnesota. (Former Sen. Norm Coleman is appealing Franken’s victory in the state Supreme Court.)

“I have decided to run for re-election in 2010 in the Democratic primary,” said Specter in a statement. “I am ready, willing and anxious to take on all comers and have my candidacy for re-election determined in a general election.”

He added: “Since my election in 1980, as part of the Reagan Big Tent, the Republican Party has moved far to the right. Last year, more than 200,000 Republicans in Pennsylvania changed their registration to become Democrats. I now find my political philosophy more in line with Democrats than Republicans.”

That happened quite some time ago.  Facing a tough primary, yet again, from Pat Toomey (who was crushing him in the polls), the time was likely right.

My only objection to the move is the timing.  Specter is either an idiot or a liar to claim that the Republican Party’s ideological movement is something sudden.  Certainly, he was well to the left of the national base in 2004.  Why didn’t he run as a Democrat, then?

I’ve been arguing for years that it is unethical for elected officials to change parties without resigning and running for re-election.  That’s doubly true when doing so would alter the balance of power in the Senate.  Most of the Pennsylvanians who voted for Specter in 2004 did so, in many cases reluctantly, on the good faith belief that he would vote with the Republican Party on leadership and at least nominally be part of the Republican coalition, even if departing from it on a number of key issue votes.

More coverage: Politico, TPM, Hotline

UPDATE: My wife’s firm, which did Specter’s polling in 1992, 1998, and 2004 has issued a statement that “because of his surprising decision to switch parties today, we will no longer be involved.”

President Barack Obama, on the other hand, is “thrilled.”

Marc Ambinder tweets: “Will Santorum get in the GOP primary now?“  A good question.

UPDATE: Matt Yglesias makes a fair point about Specter’s RINOness.

DW-NOMINATE scores shows that in the 110th Senate Specter was exactly what he claimed to be—a Republican who was less conservative than many other Republicans. Maine’s Olympia Snowe was to the right of all the Democrats, but to the left of all the other Republicans. Then Susan Collins was one click to her right. Then there was Gordon Smith and Norm Coleman and then Specter. In the 109 you didn’t have Smith and Coleman trying as desperately to position themselves as moderate for re-election purposes, so it went Chafee, Snowe, Collins, Specter. In the 108 it was Chafee, Snowe, Collins, Specter.

Thus, even if Specter were to reposition himself as the most conservative member of the Democratic Party he’d still have to become more left-wing than he’s been. What’s more, in the past there’s been a tendency for party switchers to suffer from ideological drift. Jim Jeffords went from being more conservative than most Democrats to being solidly liberal, and Ben Nighthorse Campbell went from being more liberal than most Republicans to being virulently right-wing.

I’d note that these things are contradictory.  Party outliers still vote with their leadership on issues where they don’t have strong personal conviction or constituent interest; once they switch parties, that same flexibility works in the interests of the other party.

But, no, Specter isn’t a “liberal” by Democratic Party standards; just by Republican Party standards.  The same was true the other way for Joe Lieberman.

So, why the animosity?  Because party outliers are always used by the other side and the media to embarrass the party. A John McCain’s or Joe Lieberman’s or Arlen Specter’s disagreements with their own party are more interesting.   Quite often, too, they seem to like the media courting that comes with this position and thus they come across as preening schmoes, further irritating their ostensible “team.”

UPDATE: George Stephanopoulos reports Specter told Obama,  “I’m a loyal Democrat. I support your agenda.”  Now, he might be a Democrat.   But loyal?

And, again, while conceding that the social conservatives have greatly increased their influence over the GOP since 1980, when Specter was first elected to the Senate, if he now supports Barack Obama’s decidedly un-Reaganesque agenda, the party isn’t the only party in this deal that’s moved.

Ben Smith quotes lawyer A.B. Culvahouse explaining legal obstacles to Joe Lieberman’s having been John McCain’s running mate.

“Five states have sore loser statutes … [making] it very difficult for someone who’s not a member of the Republican Party to become the vice presidential nominee if they only switch parties to become a Republican shortly before the convention,’ Culvahouse said in public remarks at the Republican National Lawyers Association annual meeting aired on C-SPAN.

Culvahouse specifically noted the example of West Virginia, a state Republicans have relied on in recent elections, saying “the constitutionality of that statute has already been litigated in West Virginia.”

“So you were looking at going to the Supreme Court, which is not particularly appetizing,” he said.

I can’t find the West Virginia statute with a quick Google search but none of the sore loser laws I’m aware of would apply.   What they’re designed to do is prevent what Lieberman did in his most recent Senate bid and John Anderson did in 1980 and Pat Buchanan did in 1996:  run in one party’s primary, lose, and then run in the general election with another party.   Lieberman was not a candidate for president in the 2008 Democratic primaries.

Hillary Clinton still owes a lot of money from her ill-fated run for president.  She owes $2.3 million just to consultant Mark Penn.  So, naturally, Clinton’s pals are holding various fundraisers to pay down said debt.

Ezra Klein asks an uncomfortable question:

Between 2004 and 2006, tax documents show that Bill Clinton earned $51 million. Put differently, erasing his wife’s campaign debt would consume 1/25th of his income over a two-year period. I blow a 25th of my income on the occasional dinner. But the former First Family’s unwillingness to shoulder the loss themselves means, inevitably, that it will be borne by committed campaign supporters who still love Hillary but are much poorer than the Clintons. It’s also requiring a frankly embarrassing level of shilling: They’re selling off days with Bill Clinton and tickets to American Idol and lunches with political consultants. Why bother?

Because, dear boy, that’s how it’s done! The Clintons have magninimously offered themselves for public service, getting nothing but a few hundred million dollars in return.  Surely, their legions of fans can do a little something.

Yesterday’s ruling by a three-judge panel that “The overwhelming weight of the evidence indicates that the Nov. 4, 2008, election was conducted fairly, impartially and accurately” and that Al Franken “received the highest number of votes legally cast” and “is therefore entitled to receive the certificate of election” should, but likely won’t, put an end to the nightmare that was Minnesota’s Senate contest.  Rick Hasen judges the ruling to be “reasonable and conservative” and “the kind of opinion that is unlikely to be disturbed on appeal by either the Minnesota Supreme Court or the United States Supreme Court.”

Coleman has said he’ll appeal yesterday’s ruling, which is what one would expect him to say.  But the fact of the matter is that, he would simply be delaying the inevitable by continuing to challenge.   This would serve to deny the Democrats an additional vote in the Senate, an understandable political goal for an embittered candidate, but one that comes at the steep price of denying Minnesotans half the representation to which the Constitution entitles them.   As such, it’s time for Coleman to throw in the towel and let Senator Franken go to work.

The process has been a frustrating one and supporters of Coleman, myself included, have reason to be unhappy with how we got here. The fact that Coleman had a 600-vote lead when the counting was done, had a 192 vote margin after the recount a month later,  and the appearance of numerous “found” Franken ballots (in fairness, he “lost” some, too) and the dubiousness of the hand recount process makes it especially hard to give up the fight.

Still, there’s no evidence that Franken or his people have done anything fraudulent.  The ebbs and flow in the vote count we’ve seen are the inevitable result of applying minute-by-minute scrutiny to an imperfect process run by human beings in a race that was, for all intents and purposes, a tie.  And, for demographic reasons, Democrats tend to fare better than Republicans in recounts.

We’ll never know whether Coleman or Franken actually got more votes.  Given the closeness of the race, a coin flip would have provided an equally satisfying and systematically valid measure.  But we have the process we have and Franken emerged the narrow winner.

It’s time for Coleman to end this.  And perhaps, in addition to finding employment that pays multiple times what United States Senators earn, he’ll lead an effort to reform Minnesota’s election system to avoid this kind of nightmare in the future.

A new report in the Journal of Experimental Social Psychology finds scientifical proof that Sarah Palin’s hotness was a drag on the Republican ticket.  The study by University of South Florida researchers Nathan Heflick and Jamie Goldenberg, cleverly titled, “Objectifying Sarah Palin: Evidence that Objectification Causes Women to be Perceived as Less Competent and Less Fully Human ,” found:

Although a great deal of research has examined the effects of objectification on women’s self-perceptions and behavior, empirical research has yet to address how objectifying a woman affects the way she is perceived by others. We hypothesize that focusing on a woman’s appearance will promote reduced perceptions of competence, and also, by virtue of construing the women as an “object,” perceptions of the woman as less human. We found initial experimental evidence for these hypotheses as a function of objectifying two targets – Sarah Palin and Angelina Jolie. In addition, focusing on Palin’s appearance reduced intentions to vote for the McCain-Palin ticket (prior to the 2008 U.S. Presidential election). We discuss these findings in the context of the election and the objectification of women.

Tom Jacobs dutifully digested the report and describes the research methodology:

They took a group of 133 undergraduates and assigned them to write a few lines about one of two celebrities: Palin or actress Angelina Jolie. Half of the participants in each category were asked to write “your thoughts and feelings about this person,” while the other half were asked to write “your thoughts and feelings about this person’s appearance.”

The participants were then asked to rate their subject (Palin or Jolie) in terms of various attributes, including competence. Finally, they were asked who they intended to vote for in the upcoming election.

Those who wrote about Palin’s appearance were more positive in their assessments than those who assessed her qualities as a person. But they rated her far lower in terms of competence, intelligence and capability, and were far less likely to indicate they planned to vote for the McCain-Palin ticket.

“It wasn’t her appearance per se” that soured people on Palin, Heflick said in an interview. “It was the effect her appearance had on their perception of her competence and humanity. Those variables made people less likely to vote for her.” (Not surprisingly, the participants’ feelings about Jolie did not influence their political opinions, whether they focused on her looks or personality.)

Come to think of it, I wouldn’t want Angelina Jolie to be a heartbeat away from the presidency, either.

Jacobs reminds us that Will Wilkinson raised this point very early in the campaign:

I think she is a tremendously sexy woman. How this will effect the race, I have no idea, but it’s just got to. It’s not an issue of glamour so much as a kind of Paglian chthonic sexual power. Set in that context, her unabashed embrace of her fecundity and motherhood as a kind of qualification makes a lot of sense.

LAT’s Andrew Malcolm quips, “would seem to suggest that, for any hope of success in 2012 or beyond, the 45-year-old governor needs to whack off that hair, pork up a bit and get some cheap, baggy pantsuits over at the Wasilla Wal-Mart. And instead of that come-on wink that many thought they liked, she’d do well to develop an uncontrollable facial twitch.”

The passage of four years will likely take some of the edge off Palin’s sexiness.  Why, she might even get a fleck or two of gray hair by then.   But she may find some other obstacles to the White House other than being too darn hot.

via Taegan Goddard

Christopher Buckley, who announced to great fanfare last October that he was voting for Obama, took to the same forum yesterday to announce his misgivings about Obama’s spending.

Government is getting bigger and will stay bigger. Just remember the apothegm that a government that is big enough to give you everything you want is also big enough to take it all away.And remember what de Tocqueville told us about a bureaucracy that grows so profuse that not even the most original mind can penetrate it.

If this is what the American people want, so be it, but they ought to have no illusions about the perils of this approach. Mr. Obama is proposing among everything else $1 trillion in new entitlements, and entitlement programs never go away, or in the oddly poetic bureaucratic jargon, “sunset.” He is proposing $1.4 trillion in new taxes, an appetite for which was largely was whetted by the shameful excesses of American CEO corporate culture. And finally, he has proposed $5 trillion in new debt, one-half the total accumulated national debt in all US history. All in one fell swoop.

Andrew Sullivan, one of Obama’s earliest and most enthusiastic non-Democratic Party cheerleaders, says, “I’m with Buckley.”

These are two highly intelligent people who make an excellent living writing about politics.  Did they really not see this coming?

Photo from Getty Images

In my New Atlanticist piece “Obama Advisors Stiffed on Administration Jobs,” I tackle the hurt feelings of the preponderance of the 300 Obama foreign policy advisors who didn’t get administration jobs for their efforts.  The conclusion:

It’s worth noting, too, that most senior level political appointments, especially in technocratic fields like foreign- and national security-policymaking, have historically gone to people with previous government experience.   Given that the last two decades have been under presidents named either “Clinton” or “Bush,” it’s not at all surprising that the appointments are coming from people who are either Republicans or Clintonites.

More at the link.

As promised, the Senate has refused to seat Roland Burris.

Illinois U.S. Senate Appointee Roland Burris arrives on Capitol Hill in Washington, Tuesday, Jan. 6, 2009. (AP Photo/Susan Walsh)

Roland Burris failed in his bid to take President-elect Barack Obama’s Illinois Senate seat on Tuesday in a scripted piece of political theater staged just before the opening of the 111th Congress.

“Mr. Burris is not in possession of the necessary credentials from the state of Illinois,” Senate Majority Leader Harry Reid of Nevada said in his speech opening the new session of Congress.

Burris, 71, earlier confirmed that Secretary of the Senate Nancy Erickson had informed him in a private meeting that his credentials lacked a required signature and his state’s seal.

“I will not be accepted, I will not be seated,” Burris told a mob of reporters who had followed him across the street for a news conference in a cold and steady rain outside the Capitol.

The former Illinois attorney general said he was “not seeking to have any type of confrontation” over taking the seat that he was appointed to by embattled Gov. Rod Blagojevich. But Burris, who would be the Senate’s only black member, also said he was considering a federal lawsuit to force Senate Democrats to seat him.

I’d contend that a lawsuit is a type of confrontation. Regardless, while there’s nothing preventing the Senate from dragging this thing out in hopes that Blagojevich is ousted from office in time to save them from this fiasco, it’s rather clear that the appointment power is vested in the governor, not the secretary of state. The upshot, though, is to render Obama’s eventual successor the most junior senator rather than, as should have happened, the most senior senator of the incoming class. (Events in Minnesota could make him next-junior, depending on how long it takes to resolve Coleman’s appeal of Franken’s certification.)

Gov. Rod Blagojevich's decision to appoint former state attorney general Roland Burris to the U.S. Senate has sparked controversial reaction throughout the political world. (Getty Images/AP Photos)

While it may be galling for Rod Blagojevich to get to appoint someone to fill Barack Obama’s Senate seat while he’s under federal indictment for trying to sell said seat, Jane Hamsher argues that he’s perfectly entitled to do so.

Then fifty members of the Democratic Caucus signed a letter saying they would oppose any Blagojevich appointment from being seated — without due consideration as to whether the Senate had the right to do so. Although there is considerable disagreement on that front, it is not at all certain that they can.

Now Illinois Secretary of State Jesse White says that he will not sign the appointment of Roland Burris, and it isn’t clear he has the legal authority to do that, either

[...]

Is any of this legal or ethical? That isn’t a question Reid seems to be asking.

Laurence Tribe disagrees.

In its landmark 1969 ruling in Powell v. McCormack, the Supreme Court held that Article I, Section 5, which makes “[e]ach House…the Judge of the Elections…and Qualifications of its own Members,” represents “a textually demonstrable commitment” to Congress of the power to judge, without interference by any court, whether a duly elected individual meets the age, citizenship and other objective qualifications for office set forth in Article I, Section 2, but not any power to deny membership through the discretionary addition of ideological or other “qualifications” to those carefully laid out in the Constitution itself.

[...]

That Roland Burris, the man appointed by the Illinois governor in late December, was never “elected” is beside the point inasmuch as the 17th Amendment specifies that, whenever there is a vacancy in any state’s Senate representation, the state’s legislature “may empower [its] executive . . . to make temporary appointments until the people fill the [vacancy] by election as the legislature may direct.”

Steven Taylor agrees that “the focus on process, not candidate, gives the Senate a constitutional argument to stand on” while Jack Balkin notes that “temporal and political factors” are at play, too:

a complicated process of bargaining and playing for time. And even if the Senate lacks the authority to refuse to seat Burris, the debate over whether it does (and the need for Burris to bring litigation to establish his right) also gives the Senate and the Illinois legislature room for maneuver.

The Senate may ultimately seat Burris, but for the moment, it probably wants to delay decision by referring the matter to a committee to consider whether or not there was anything problematic in the circumstances of the appointment (Many commentators doubt that there is anything problematic with the appointment, but it’s worth recalling that only a few weeks back the Governor was caught on tape boasting he would sell the seat and certainly wouldn’t let it go without getting something valuable for it. Even if there is no present evidence of misconduct in this appointment, the Senate might insist that it deserves a little time to look a little closer into the circumstances).

It seems self-evident to me that Blagojevich has every right to appoint whomever he wants to the Senate (providing that they meet eligibility thresholds) for just about any reason and that the Senate has every right to refuse to seat that person for most any reason, which creates a stalemate.  As a matter of reasonablenesss, however, absent evidence that the Roland Burris appointment itself was tainted, he should be seated.   Like it or not, Blagojevich is the governor of Illinois.  And the state deserves representation in the Senate.

Norm Coleman is likely out of a job, despite his election contest not being settled.

When the 111th Congress convenes, Coleman may be out of an office. Photo: AP

Coleman’s first term officially expires at noon on Saturday, and he is locked in one of the closest Senate races in history, with Democrat Al Franken clinging to a 49-vote lead out of nearly 3 million votes cast. Since he has not been certified a winner in the race, Coleman may have to give up his privileges as a senator, including his desk on the floor, his personal office and his right to vote on legislation, according to Democratic aides familiar with the rules.

This strikes me as a perfectly reasonable outcome.   Franken is much more likely than Coleman to be certified the winner when all the challenges are settled.  But Franken probably won’t be seated, either, until that point:

The state canvassing board is expected to certify a winner next week, and it’s unclear whether either Franken or Coleman would try to claim the seat following that certification. Doing so would spark a backlash since the fight over the election returns will ultimately land in court — and perhaps the Senate, which has a constitutional role in resolving election disputes. Sen. John Cornyn of Texas, the chief GOP campaign strategist, said he would block any attempt to seat Franken in the Senate until litigation is resolved and a winner is certified.

So, Minnesota will be short one Senator for a while.

A ruling by the Minnesota Supreme Court has all but officially made Al Franken the winner in the Senate recount.

A state Supreme Court ruling Wednesday narrowed the options available for Sen. Norm Coleman to erase a slim lead held by DFLer Al Franken in the Minnesota election dispute, and Coleman’s campaign threatened a court battle that could leave the Senate seat vacant for a month.

The Supreme Court denied a bid by the Coleman campaign to prevent local and state canvassing boards from tallying votes that the incumbent says may have been counted twice. Most of the votes at issue are from DFL strongholds. The justices said the campaign’s claim of double-counted ballots is better resolved in a court hearing where evidence can be presented, instead of by canvassing boards.

I have no opinion on the merits of the ruling but this leaves Coleman’s last recourse as a challenge which, as Eric Kleefeld puts it, has a “burden of proof that heavily favors the certified winner.” Unless Coleman can prove that ballots were in fact counted twice — and I have no idea how he’d do that — Franken will be the winner.  Nate Silver notes that, “while it is nearly guaranteed that there were at least some instances of double-counting, the same discrepancies could be explained by other phenomena, an Coleman’s case relied on what might could best be described as circumstantial evidence.” (Scott Johnson provides additional background on the statutory law.)

As I’ve noted since this farce began, the race is a tie and none of us knows whether Coleman or Franken truly got more legitimate votes. Given that Coleman “won” on the initial count, though, his supporters will quite reasonably feel as if the election was stolen from them in a bizarre, dubious process.

We have to have a better system than this.