Yesterday Rod Blagojevich (the latest Illinois governor to be arrested) defied the popular conception that nothing happens in politics between Christmas and New Years – he appointed former Illinois Attorney General Ronald Burris to Barack Obama’s vacant Senate seat. It came as a pretty big surprise, especially after last week’s prediction by Blago’s attorney, Ed Gensen, that the appointment would not be made.
Senate Democrats have threatened to refuse to seat Burris on the basis that no one appointed by Blago can effectively represent the people of Illinois. The Illinois Secretary of State, Jesse White, says he’s not going to certify the appointment, however, the state charter holds that certification is his duty. So – what would happen if Burris shows up next week? According to Senate Associate Historian Donald A. Ritchie, there is no precedent here. Enter the U.S. Constitution.
Senate Democrats say they’d make use of Article I, Section 5 which says Congress may determine whom they seat – based on members’ qualifications. However, 1969 Supreme Court ruled that when judging “qualifications,” Congress is limited to age, citizenship, and residency. Of course, this case involved an elected representative where Burris, of course, was appointed.
According to a good article on fivethirtyeight.com, Senate Democrats have two options under the Constitution:
1) Exclude Burris from the Senate with a majority vote (this would trigger Powell).
2) Expel Burris after seating him (requires a two-thirds vote) and the court would likely not take any case on Political Question grounds.
For now, most predictions look to be that Harry Reed and the Democrats will unsuccessfully attempt to exclude Burris.