Tuesday, January 6, 2009

Experts Duel on Illinois Senate Pick

Now, that Illinois Governor Rod Blagojevich has daringly gone ahead and named someone to fill the Senate seat vacated by Barack Obama, the question of whether the Senate can block the appointment by refusing to seat Blago's pick, Roland Burris, is urgently raised. I previously opined that in light of Supreme Court precedent it seems that the Senate lacks this power, although I also remarked that it's far from clear what a court could do if the Senate went ahead and excluded Burris anyway.

Now some other legal pundits are weighing in. My old law professor Akhil Amar says that the Senate can stop Burris by exercising its constitutional power to be the "Judge of the Elections, Returns and Qualifications of its own Members." Akhil claims that, although, as I previously explained, the Supreme Court took a narrow view of a house of Congress's power to judge the "qualifications" of its members, what is happening now would constitute an "election" or "return" in the constitutional sense, and the Senate would have the power to act as the "judge" of the validity of the election or return.

Meanwhile, Erwin Chemerinsky, Dean at UC Irvine, agrees with me that under Powell v. McCormack, the Senate lacks power to exclude Burris.

Akhil is brilliant, but I'm sticking with my original view. Akhil's suggestion that Burris's appointment is an "election" with a voting population of one is, I would say, a nonstarter (too eccentric). His suggestion that it is a "return" is somewhat more plausible in light of the old-fashioned definition of "return" as "The official report made by a returning officer (originally the sheriff) as to the election of a member or members of Parliament; hence, the fact of being elected to sit in Parliament." But even that is not really what's happening here.

The best argument on Akhil's side, I would say, is his point that the Senate's power to judge "elections" and "returns" must include the power to determine that an election is corrupt. I would agree with that, and I might even agree that if the Senate determined that this particular appointment was bought and sold it would have the power to exclude the appointee. But as far as I can tell no one is even suggesting that; the only suggestion that the Blagojevich, by virtue of what he is alleged to have contemplated previously with regard to the appointment, is unfit to make any appointment. That seems just too much like what happened in Powell v. McCormack, where, although everyone agreed Powell had been elected, he was judged personally unfit by other House members. Here, as far as I can tell, it is agreed that Blagojevich is the Governor of Illinois and he has appointed Burris without any suggestion of corruption in the actual, ultimate appointment. The Senate just thinks that Blagojevich is personally unfit to make the appointment at all. That strikes me as falling under the rule of Powell.

So Akhil has some good points and I guess the matter isn't as clear as I initially suggested. And it's still unclear to me what a court could actually do if the Senate refuses to seat Burris. But so far I still come down as thinking that (if Powell is accepted as correct), the Senate's duty is to seat him.

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