Illinois Senate Seat

Despite calls for his resignation, as of right now, Rod Blagojevich is still the Governor of Illinois, and he could still name anyone he wants to the U.S. Senate seate vacated by Barack Obama. Various news stories are suggesting that if he exercised this power, the Senate might refuse to seat whoever he chooses. According to these stories, the Constitution gives the Senate the power to refuse to seat the Governor's choice because the Senate has the power to judge the qualifications of its members.

Could the Senate refuse to seat Blagojevich's pick? I don't think so.

It's true that Article I, section 5 of the Constitution provides that "Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members." But in Powell v. McCormack, the Supreme Court held that this clause refers only to "the standing qualifications prescribed in the Constitution": that the member be a specified age, a citizen of the United States for a specified amount of time, and an inhabitant of the state for which he serves. The Court specifically rejected the ability of a house on Congress (in that case the House of Representatives) to exclude someone because of what the house regarded as his moral unfitness. That would seem to extend a fortiori to moral unfitness in the person who appointed a member.

So it seems to me that the Senate would have to seat a replacement picked by Blagojevich. The Senate could then immediately vote to expel that person. But an expulsion is different from an exclusion: in particular, under the Constitution, it requires a two-thirds vote. That might well happen, but it's a higher hurdle than an exclusion, which requires only a majority vote.