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Sen. Byrd Dies at 92     Permalink

Sen. Robert Byrd (D-WV), the longest serving member of Congress in history, died early this morning at a hospital in Fairfax, Virginia. He was elected to the Senate nine times, starting in 1958, and was majority leader twice as well as chairman of the powerful Appropriations Committee. Byrd was a member of the Ku Klux Klan in his youth, and filibustered the 1964 Civil Rights Act, but since then has apologized thousands of times for his youthful behavior. In recent years, he has earned a 100% voting record from the NAACP. His trajectory from humble, racist beginnings to a far more moderate position and author of a four-volume history of the Senate has been astonishing. He was also famous for always carrying a copy of the U.S. constitution in his pocket and quoting from it, as well as the Bible and Shakespeare, often. One of his many obituaries can be found here

It is a pity for the Democrats that Byrd could not hang on for another week. Had he lived until July 3, 2 years and 6 months before the end of his term, then governor Joe Manchin (D-WV) would have appointed a successor to serve out the rest of his term. But since there are more than 2 years and 6 months left in his term, Manchin will appoint an interim successor but there will be a special election in November to fill the seat starting in January. While West Virginia tends to vote Republican in presidential elections, the other senator, Jay Rockefeller, and Gov. Manchin are both Democrats. Whether the Democrats can hold the seat depends a lot on who the candidates are. Manchin himself is probably the strongest candidate if he decides to run.


Politico has a story that suggests it is not quite as simple as this since the law does not say when the vacancy occurs. Is it when the senator dies or when the governor declares a vacancy, a declaration Manchin could delay until next week. Also, the law is ambiguous about when the special election should be held. It seems incredible that lawmakers can't write a simple law like how to fill a vacancy without raising many issues. Or maybe it is not incredible.

Update 2

West Virginia's Secretary of State, Natalie Tennant, has announced that her reading of West Virginia law is that since the filing date for elections has already passed for 2010, the special election to fill (the last 5 weeks of) Sen. Byrd's seat will be held in Nov. 2012, along with the regular election for a full term. Presumably the candidates for the two elections will be the same. Having two elections is not without consequences since the winner of the special election will be seated before any new senators elected in 2012, and thus have seniority over them, no small matter in the Senate.

Kagan Hearings Begin Today     Permalink

The hearings to confirm Solicitor General Elena Kagan to the Supreme Court begin today. The hearings give senators a chance to grandstand and make long speeches instead of asking pointed questiions. Kagan will invariably say that she will be a scotorobot on the court--law in, decision out, even though she doesn't believe this for a second and has publicly criticized confirmation hearings in the past.

While many people, especially conservatives, want the Supreme Court to simply follow the constitution, the reality is that all the easy cases never make it to the Supreme Court. They get all the hard ones, where the law and constitution give no guidance at all. Consider a recent case that landed on the court's docket. A school in Arizona made a 13-year-old girl take off her bra and panties in the presence of the school nurse to see if she was hiding Ibuprofen in them. The girl, Savana Redding, was humiliated by the strip search and sued the school. The case ended up in the Supreme Court. Undoubtedly all the justices scrambled to reread the fourth amendment, which reads

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

The question of whether this search was legal hinges on one word: "unreasonable." Is it reasonable to strip search a 13-year-old girl looking for a drug that is available over the counter in every drug store in the country? About what about "probable cause"? Most likely that was meant to apply only to warrants, but how much evidence do school officials need to conduct a search in the first place? The search was initiated when a fellow student told a school official that Redding had Ibuprofen on her.

Anyone who can figure out whether the folks who wrote the constitution intended to allow this kind of search must be clairvoyant. It is perfectly obvious that there is no way for a Supreme Court justice to insert the constitution in one end of the pipe and have a decision come out of the other. The justice's views on privacy, society, and a lot more play a major role here and it is clearly within the Senate's authority to ask about the nominee's views on a wide variety of subjects to get a feeling for how he or she will rule. Yet rather than asking pointed questions and demanding answers, they tend to blather on endlessly and nominees tend to spout meaningless platitudes. Such is the confirmation process these days.

No one doubts that Kagan will be confirmed. The Republicans, who probably suspect that Kagan is not going to rule the way they want most of the time, don't have enough ammunition against her. She has no judicial track record and barely an academic record. In effect, all they have to go on is that Obama nominated her, which for some is enough to vote no (just as some Democrats voted no on Bush's appointees, John Roberts and Samuel Alito, as a matter of principle). But no one expects a filibuster and the votes are there to confirm her.

Buck Leads Norton in Colorado     Permalink

There is a good chance that the tea partiers will be able to claim a third scalp in a top-tier Senate race. The most recent SurveyUSA poll shows Weld County District Attorney, Ken Buck, a tea party favorite, leading former Lieutentant Governor Jane Norton (R) 53% to 37% for the Republican senatorial nomination to face Sen. Michael Bennet (D-CO) in November. If Buck wins, he will join Rand Paul (R) of Kentucky and Sharron Angle (R) of Nevada as successful tea party insurgents who have defeated mainstream Republicans supported by the entire Republican establishment. When the tea partiers appeared on the scene last summer, they were protesting Obamacare, which has since become law, but in practical terms, it is Republicans who are bearing the brunt of their anger. While Paul, Angle, and Buck, might win their respective elections, all are far weaker than the candidates they defeated, giving the Democrats much better chances to win or hold their seats.

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