Obama’s Senate Seat

Posted by Katherine | January 7, 2009 – 10:38 pm
Do not sit
[Leo Reynolds / Flickr]

You’re familiar with Illinois Governor Rod Blagojevich, yes? And the corruption charges resulting from the way he tried to fill Obama’s Senate seat? And the ensuing hoopla surrounding his Senate appointee, Roland Burris? Good.

So a new Gallup poll says 51% of Americans favor blocking Burris from the Senate and only 27% feel he should be seated. This just as Harry Reid and other Democratic leaders in the Senate are warming up to Burris — a significant thaw since their statement last week that no one appointed by Blagojevich would be accepted.

Nate Silver, a probutcool baseball-stat whiz turned political-poll genius, defends — or at least understands — Reid’s about-face.

At the time the Blagojevich scandal broke, did Reid and the Democrats really have any choice but to distance themselves as much as possible, and assert flatly that they wouldn’t seat anyone that he nominated? Did they really have any reason to expect that a quasi-credible candidate like Roland Burris would actually accept Blagojevich’s nomination (as opposed to someone like, say, Patti Blagojevich?)

I think Reid can be criticized for one thing — for failing to advocate for a special election. But even if the Democrats had made a more earnest push to hold a special election, that would still have provided for the possibility that Blagojevich would attempt to nominate someone in the meantime. What were they supposed to have said? “You know Rod, we really have no legal grounds to block your nominee, so please pretty please with a cherry on top don’t do it?

Scott Lemieux teaches political science at Hunter College in NYC and argues that the Dems really have no choice but to seat Burris.

[M]issed in many discussions about the Burris appointment is the fact that the Senate is probably unable to prevent him from being seated as a matter of constitutional law. The Supreme Court ruled 8-1 (and 8-0 among justices deciding on the merits) in Powell v. McCormack that “in judging the qualifications of its members, Congress is limited to the standing qualifications prescribed in the Constitution.” […] [T]he bottom line of Warren’s majority opinion is unequivocal and directly on point; if Burris were to litigate an exclusion a lower court would almost certainly rule in his favor, and I doubt that the Supreme Court would overrule. The Senate could expel him after seating with a 2/3 majority, but (absent strong evidence that Burris obtained the appointment illegitimately) this seems unlikely. Reid’s remedy is likely to be to prevent him from joining the Democratic caucus.

Sandy Levinson is a law and government prof at the University of Texas. Although he thinks some of the legal arguments made against seating Burris are plausible, he is, overall, unpersuaded.

I suppose it’s true that the Senate could/should consider the bona fides of a gubernatorial appointment if there is good evidence that it was procured by criminal means, including bribery. The problem is that there is not a scintilla of such evidence in this case. Governor B. might well be guilty of “attempted sale of the Senate seat,” but it’s clear that it didn’t work, and that he, clever politician that he is, reached out to strengthen himself with a key constituency and, an added bonus, to discomfort many of his erstwhile Democratic Party allies. I don’t see how one can mount a good-faith argument against seating Burris unless one is willing to open each and every gubernatorial appointment to some kind of “good-government” scrutiny.

For an anti-seating argument, try this post from Yale Law School’s Jack Balkin, one of Levinson’s co-bloggers (the post didn’t lend itself to a short excerpt). Or try this MSM piece from Slate.

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