As featured on p. 218 of "Bloggers on the Bus," under the name "a MyDD blogger."

Monday, June 01, 2009

MN-Sen: State Supremes Hear Oral Arguments

Al Franken and Norm Coleman's lawyers had their oral arguments before the Minnesota Supreme Court today, the last step before resolving this battle at the statewide level. Eric Kleefeld has a recap of the questions to Coleman's lawyers and Franken's lawyers, and Rick Hasen offers these thoughts:

1. It is always dangerous to guess how a court is going to come out based upon oral argument. But there's good reason here to believe that the state Supreme Court Justices went into this with their minds made up: this case has been expedited pursuant to state law, and they've had two weeks (including three weekends) to think about how to decide this case based upon the briefs. They likely had a draft opinion or set of opinions in front of them. So this oral argument may be more of a tip off than most.

2. There's no question that Coleman's side got much tougher question than Franken's side, and based upon oral argument I would not be surprised to see a unanimous decision in favor of Franken in a relatively short time frame (within two weeks--maybe sooner). I counted at least three of the five Justices who were much more willing to accept Franken's arguments than Coleman's arguments, and who asked Coleman's side much more difficult questions.

The real question comes after this, when the Minnesota Supremes offer their expected verdict. Will they ask for the certification of the election (probably yes)? Will Governor Tim Pawlenty sign that certificate (depends on who he thinks is the audience - Minnesotans, or an imagined 2012 Republican primary electorate)? Will Republicans in the Senate allow Franken's seating (not hard to answer that one)? And will Coleman sue in federal court? Hasen has the outline of an answer for that:

Near the end of the argument, (Coleman lawyer Joe) Friedberg suggested that if the state Supreme Court affirmed under a strict compliance standard, it would create (or exacerbate) the federal constitutional problems that Coleman has been pushing. These are arguments Coleman may try to advance, assuming he loses in this court, in a cert. petition in the U.S. Supreme Court, or in a separate federal lawsuit. In pieces at Slate, the ACS Blog, and the LA Times, I have considered both the merits of those constitutional arguments and whether they need to be addressed in a separate federal court action.

Coleman's argument, essentially, is that we cannot know the outcome, it's chaos, and so we cannot seat Al Franken. They've offered little definable proof for this, and were criticized on this point in court today. But that's what they're going with. And it makes sense if you understand that Coleman does not seek another term, but only to play the role of a linebacker keeping Franken out of the end zone. It's obstructionism writ large. The question remains, how much patience will Republicans have for this tactic?

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