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Can The Senate Stop Blagojevich’s Appointment Of Roland Burris?

January 2, 2009

The legal arguments loom over whether Roland Burris will be kept off the United States Senate floor next week, and denied the right to represent the State of Illinois.  The appointment of Burris by scandal-ridden Governor Rod Blagojevich has made for an incredible political and legal drama.   But who is right, and what does the law say? 

Tonight at dinner with a friend we had a robust and mentally stimulating discussion over this case, and I am sure that many such conversations are taking place everywhere.  This is a great textbook example of the rights of the state, the constitutional power of the Senate, and the legal umbrella that reaches out in all directions.

So who is right?

Well it depends on who ask.  Legal scholars and professors weighed in at Slate and have a view that is black and white.  They make a strong case for the Democrats denying Burris a seat in the Senate.

True, in the 1969 case of Powell v. McCormack, the Supreme Court properly held that the Constitution imposes limits on the power of the Senate and the House to exclude members. Some legal commentators say this decision trumps the Senate’s power to exclude Burris. But the letter and spirit of Powell actually cut against him. The case involved an elected congressman, Adam Clayton Powell, whom the voters had clearly chosen in a fair election and whom the House nevertheless excluded—wrongly, the court held. The key fact is that there was no doubt whatsoever that Powell was the people’s choice, and in issuing its ruling, the Warren Court repeatedly stressed this. The justices insisted that their ruling was aimed at protecting the people’s right to vote. None of that spirit applies here. And that’s why the case doesn’t stand in the Senate’s way now.

Powell also said that each house could “judge” the qualifications laid out in the Constitution (such as age) but could not make up new qualifications. Thus, if the Senate were to plausibly decide in good faith that a candidate failed to meet the Constitution’s age requirement, Powell nowhere suggests that this senatorial determination should be set aside by ordinary federal courts. For similar reasons, federal courts should not interfere when the Senate plausibly and in good faith decides an election or return to be improper or corrupt. The critical point here is that the Constitution itself sets up the Senate as the highest court of Senate elections. When the Senate speaks as this court, its adjudications are legal judgments that no other court may properly reopen. If the Senate convicts a federal judge in an impeachment court, no other federal court may properly interfere. So, too, for Senate elections and returns.

What are the counterarguments in favor of seating Burris? Both he and Blagojevich say that the Senate should not hold the governor’s sins against his would-be senator. To be sure, there is no evidence Burris bribed the governor to get this seat. But imagine if Burris had won election only because other candidates were wrongly and corruptly kept off the ballot. Surely the Senate could properly deem this an invalid election. Similarly, it now seems apparent that there were candidates that Blagojevich refused to consider for improper reasons—because one refused to “pay to play” early on, or because another is at the center of the impending criminal case against the governor. With the appointments process so inherently and irremediably tainted, the Senate may properly decide that nothing good can come from a Blagojevich appointment.

But what about the duty of a still functioning Governor to appoint a person for a Senate vacancy?  Many argue that it would be wrong to deny Burris, a much respected public servant, a place in the Senate.

No matter what we might think of Governor Rod Blagojevich, you have to give him his due for sheer nerve. In the face of political scandal, imminent indictment, and possible impeachment, he one upped his critics, and defied his party, by appointing someone whose fitness to represent Illinois in the Senate cannot be reasonably challenged. By naming former state Comptroller and Attorney General Roland W. Burris, the first Black to hold statewide office in Illinois, the governor has set up the improbable scenario of Senate Democrats attempting to deny Mr. Burris his seat. It is the worst of possible outcomes for Democrats in this unfolding drama and threatens to stain the January 20 inauguration of Barack Obama as the nation’s first Black President.

I believe Roland W. Burris should be seated next week when he arrives in Washington, D.C. He is qualified. He is accomplished. He has been a diligent public servant. He should not carry guilt by association. If how individuals came to Congress were the litmus test for their being allowed to serve, both chambers might have a fair number of empty chairs. By the way, though many find the charges against Governor Blagojevich serious and troubling, and hoped he would step aside for the sake of Illinois’ residents, he has not been found guilty of any crime and continues to hold office legitimately; not to mention his right to be considered innocent until proven guilty.

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