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
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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.
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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.
