Can the Senate refuse to seat Blago’s appointment?

Notwithstanding the half-thuggish, half-clownish attempt by former Black Panther Rep. Bobby Rush to scare the U.S. Senate away from blocking Gov. Blago’s appointment to the Senate of an “African-American,” former Illinois Attorney General Ronald Burris (who is himself a total low-life since he invited Rush to play the race-card on his behalf), the Senate Democratic leader and the Democratic president-elect say they are determined that no one appointed by the Beatle-mopped Blago will be seated.

Does the Senate have the power to deny Blago his choice?

The 17th Amendment to the U.S. Constitution, under which U.S. senators are elected by the people of their state rather than by the state legislature, says:

When vacancies happen in the representation of any state in the Senate, the executive authority of such state shall issue writs of election to fill such vacancies: Provided, that the legislature of any state may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.

Article I, Sect. 5 of the Constitution says:

Each House shall be the judge of the elections, returns and qualifications of its own members, …

So, even though the governor under the U.S. Constitution and Illinois law has the power to appoint a temporary senator to take Obama’s vacated seat, the Senate is still the judge of the qualifications of its members, meaning it can refuse to seat someone it regards as unqualified.

But it’s not as simple as that. According to Sam Stein writing at Huffington Post,

A legal scholar writes in to say that precedent surrounding the Senate’s right to not seat [sic] certain members seems very likely to fall in Burris’ favor.

“My reading of Powell v. McCormack, 395 U.S. 486, is that the Senate probably can NOT constitutionally block Burris from being seated,” writes the constitutional law professor. “Art. I, sec. 5 gives each House the power to judge the qualifications of its own members. Powell holds (inter alia) that the qualifications to be judged are those stated in the Constitution (see Art. I, sec. 3, cl. 3 and the 17th Amendment).”

“Burris has met all of those qualifications: he’s over 30, been a US citizen for 9 years, he’s an Illinois resident; he was appointed by the executive authority of the state to fill a vacancy, pursuant to Illinois law.”

If it’s true that the qualifications referred to in Article I, Sect. 5 are only the bare legal qualifications for office, not qualifications in any larger sense, then the Senate would have no basis to refuse to seat Burris. If the Senate refuses to seat him, the case will likely go to the Supreme Court, which will find in Burris’s favor. The only remaining recourse would be an emergency constitutional amendment stating that “No person who has hair like Ron Blagojevich shall occupy, or appoint any person to occupy, any office of trust under the United States.”

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Terry Morris writes:

“…former Illinois Attorney General Ronald Burris (who is himself a total low-life since he invited Rush to play the race-card on his behalf),…”

My initial thought on this was “why would anyone want or accept such an appointment given the scandal surrounding Blago, and therefore everything Blago touches?” But I guess your parenthetical remark quoted above accounts for that.

LA replies:

The sly smile on Burris’s face during the event marked him out as the cheap character he is.

Obama, while opposing Burris’s nomination, called him a good and honest man. A reporter should ask Obama, “Given that Burris asked Bobby Rush to make those disgraceful remarks in which he used racial intimidation on his behalf, do you still consider him a good and honest man?”

Posted by Lawrence Auster at December 31, 2008 09:43 AM | Send