Can Burris Be Seated?

Senate Democrats seem prepared to try and block the appointment of Roland Burris to the US Senate, and at first glance, given the Senate's control over the seating of its own members as granted by the Constitution, I thought they had that ability. However, a closer reading of precedent suggests that they may be stuck with ol' Roland.

Democrats said they were confident of their standing under Article I, Section 5 of the Constitution, which says “each House shall be the Judge of the Elections, Returns and Qualifications of its own members.” On rare occasion, the Senate has denied seats to candidates whose election outcome was in doubt or who were caught up in corruption.

Yet constitutional experts question the extent of that authority, particularly in light of a 1969 Supreme Court decision in the case of Adam Clayton Powell Jr. of New York. The court found that the House could not bar Mr. Powell, who had been accused of financial impropriety, if he met the constitutionally determined qualifications for age, citizenship and residency.

“I think the best reading of the text of the Constitution and the Powell case together is that the Senate has to seat Burris,” said Abner S. Greene, the Leonard F. Manning professor of law at Fordham University School of Law.

Jack Balkin thinks the Senate can essentially say that the process of the executive appointing Burris was improper, and that could be the basis of their refusal. Considering that the Secretary of State of Illinois is refusing to certify the appointment (and it's unclear whether or not he even has a say in the matter), there's at least some basis for that. I think this fight comes down to more of a delaying tactic than anything, waiting out Blagojevich until he's indicted or impeached and hoping that Lieutenant Governor Pat Quinn can make the appointment. However, Patrick Fitzgerald just asked for an extension in the indictment process:

In a motion filed today in U.S. District Court, Fitzgerald said that the length, scope, and complexity of the investigation, combined with the intrusion of the holiday season, has prevented him from meeting the January 7 deadline. The probe, writes the prosecutor, began in 2003 and "involves multiple potential defendants" and thousands of intercepted phone calls.

The move means that we likely won't learn much more from Fitzgerald about Blagojevich's alleged crimes until at least March. So speculation is likely to continue.

And the Illinois legislature won't be speeding up their process of impeachment, meaning that wouldn't kick in until mid-February. And then there's the question of what happens if Quinn tries to appoint and the Burris case is still tied up in court.

Again, if nobody can lead an effort to change the Constitution, mandating special elections for every vacancy, after THIS, then there is no such thing as a Constitutional amendment anymore. Rather, I think this parallel in the Times story is the one Senate Dems are meekly hoping for:

One rough parallel to the current situation arose in 1947 in a Senate dispute over whether the white supremacist Theodore G. Bilbo of Mississippi should be seated after accusations of voter suppression and campaign corruption. In that case, the Senate found itself deadlocked, and Mr. Bilbo died before the disagreement could be resolved.

...As to Blagojevich's motivations, I agree with Dan Conley that this is a criminal defense trial masquerading as a Senate appointment. He is proving that he can appoint a Senator without auctioning off the seat, undermining that element of the complaint (which isn't the main one, by the way); and by appointing an African-American, and by getting the respected Bobby Rush to warn Senate leaders not to "lynch" him, he brings racial politics into the equation, which may be an aid when the jury is seated, perhaps in heavily black Chicago.