Procedural Shenanigans for Lawbores


I should get out and do something. Before I do--two notes here.

One is from Irishspy, who suggests that, were Hillary to be elected, Governor Spitzer could fill her Senate seat with Bill Clinton. It turns out that this would be legal in New York, and that the statute restricting family members being appointed to the Cabinet would not on the face of it apply to the Senate. There is some rather unseemly shoving going on at the minute.

However, the Senate is capable of sitting in executive session. An argument could be made that foreign policy and defense are powers ultimately rooted in the Senate, not just the Presidency; and that the President has no power of appointment to executive positions without the advice and consent of the Senate. How would the Supreme Court deal with this?

It's a lawyer's issue. The court of course deals only with what it chooses to deal with, and the election or appointment of senators is a matter of state law except as changed by the direct election of senators. The court turns a blind eye to the odd status of the Solicitor-General of the United States, for instance, who sits in the Cabinet and as a permanent adviser to the court on the interests of the US. This makes the Solicitor General comparable in effect but I suppose not technical detail to the Vice-President, who is the Chairman of the Senate.

It is one to think about in general though. If any of the Democrat candidates except Edwards, Richardson, Gravel or Kucinich win the election--and I think we can safely put aside three of those names--the Democrats are going to be down possibly one and maybe two seats in the Senate, depending on who is Vice-President. This will open up all sorts of opportunities for preferment. Equally, if Obama won and ran with Mike Bloomberg, a role would open up in the New York Mayoralty.

And, of course, if the Electoral College were split and the Presidency passed to the House of Representatives, they would no doubt debate forcefully who should be President. The Vice-Presidency would be decided by the Senate though, which would then contain up to six of this year's presidential candidates including the winner, possibly. Mad that.

Though of course this is highly speculative, since I'm not so sure Hillary Clinton will win the Democrat nomination, let alone the White House. I haven't any Irish betting genes and usually lose political bets, so maybe I should curse her campaign by sticking a tenner on it.

A second and more important legal shenanigan you may be interested in is to be found from a close reading of this UN Security Council resolution.

Do you remember all that kerfuffle about the reading of UN resolutions authorising western action in Iraq in 2002-3? This is the resolution (1244, and by the Security Council not the Assembly so it is binding) establishing the present status of Kosovo as part of Yugoslavia, whose successor is Serbia, and the relevant protocols about a legal status process that is attached. It wouldn't be the case that NATO and the EU are preparing to rip this up and just send a force in to break the area away, which the Serbs will almost certainly resist with Russian support, would it?

Comments