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January 01, 2009

Why the Senate can't block Blago's nominee

Commenter Daedalus alerted me to this article in Slate claiming that the US Senate has the right to block Illinois governor Rod Blagojevich's appointee for Barack Obama's senate seat.

The main argument has two key premises. The authors, Akhil Reed Amar and Josh Chafetz, argue that the Senate has always had the power to refuse to admit the "winner" of a fraudulent election. They also cite language in Section 5 of the Constitution that appears to cover fraudulently appointed senators as well.

These premises are plausible, but they don't establish the conclusion, namely, that the Senate could refuse to accept Roland Burris because he was picked by Rod Blagojevich. Why not? Because Roland Burris wasn't appointed through a corrupt process.

Blagojevich is accused of trying to sell Obama's seat to the highest bidder. He hasn't been indicted or convicted of anything, but the criminal complaint against him includes some seemingly damning wiretap evidence. Blagojevich shocked everyone by refusing to resign after he was arrested on Dec 9.

However, so far, no one is alleging that Burris was appointed through seat-selling, bribery, theft of honest services, or any other kind of corruption--not the Republicans, not the Democrats, not the Justice Department, and not the media.

In fact, we know Burris wasn't involved in the original scam because he doesn't match the description of any of the leading candidates laid out in the criminal complaint.

If the Senate has evidence that Burris was chosen through some other racket, then they should exclude him. But I don't want to see the Senate or the courts redefine "corrupt process" to mean anything that an allegedly corrupt governor does, including his non-corrupt actions.

Even Blago's most cynical critics say that he's now making a big show of non-corruption by choosing Burris. The 71-year-old has a respectable track record of public service. Burris is widely known in his home state as a former controller and attorney general.

Blago is still the governor and it's the governor's job appoint senators when seats open up between elections. The fact that the governor has been accused of making other corrupt decisions is neither here nor there as far as the Senate's right to exclude appointees.

Would I say the same thing if the Republicans controlled the Senate? You bet. I think rejecting Burris would set a terrible precedent, in the unlikely event the Supreme Court decided to go along with it. If the GOP had the upper hand, they'd probably be using this "corrupt process" argument to screw someone who I actually respect--as opposed to using them to thwart a governor who should have been impeached already and his C-list appointee.

Update: Sandy Levinson of Balkanization is making the same argument that I did. Scott Lemieux agrees that Burris should be seated.  Jack Balkin disagrees.


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Interesting. Atrios came to exactly the same conclusion for exactly the same reason. We who comment because every thing that stinks like Bagjobovich offends us and its stink is presumed to rub off do owe events a more careful reading. If Burris is a qualified contender and the steps taken in his selection by Blago are above board then yeah, spiting Blago at Burris expense just to punish him by proxy for other wrong doings is dumb. I have not fight in this dog.

See Rod Blagojevich and an all-star cast in “All-Star Jailhouse Rock” at


Let Burris serve two years. Even if he is corrupt, he wouldn't be the first such Senator in US history. Two years is enough to show his true colors, and then the people of Illinois can decide if he's right for them

Blago clearly made this choice as a way of signaling that he isn't selling the seat. I'll bet good money that there is no quid pro quo between Burris and Blago. I think it's safe to assume that everything Blago does between now and his trial is aimed and winning at trial, and one way he can help his odds is by being scrupulously and obviously clean from here on out.

Actually I think politically this is the best solution the Democrats could ask for. If Blagojevich had not nominated anyone they would be one seat down until the impeachment was over and a new Governor had a chance to make a choice. This way the Reid can scream and shout to prove to the press that he is repudiating corruption and would like nothing better than to reject the nomineee, take it to the courts, lose because of the clear precedent, and get seat without having to accept the process. Burris becomes a Senator and either holds onto the seat or not in 2010 depending on his performance, and Obama can leave this all behind with an "I don't agree with the outcome but it was the court's decision"

I don't understand why the Senate can't let him in, but simply refuse to let him into the Democratic Caucus or give him any committee appointments. Make it clear that he'll be there, but completely ineffectual.

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