As a New Year's gift to the Democratic Party, Illinois Gov. Rod Blagojevich has appointed former state Attorney General and Comptroller Roland Burris to the U.S. Senate—although Illinois Secretary of State Jesse White says he won't sign the certificate of appointment. Senate Democrats, including Majority Leader Harry Reid, have said they wouldn't seat anyone Blagojevich appoints. But as I understand it, the Supreme Court ruled in 1968 that the House of Representatives couldn't bar Rep. Adam Clayton Powell from being seated. The reasoning was that Powell had been elected according to law and must be allowed to take his seat, even though under the Constitution there was no doubt that the House could vote, once he was seated, to expel him for misconduct. Is the Senate bound by different rules?
Unless it maintains somehow that a Burris appointment isn't legal without a certificate from the Illinois secretary of state, it seems to me the Senate has no argument that Burris has been selected illegally. He was not named in the charges against Blagojevich made by U.S. Attorney Patrick Fitzgerald, nor does he seem to fit the profile of any of the candidates Fitzgerald mentioned. And he does meet the basic standards for a U.S. senator. He has been elected to and served in Illinois statewide office without scandal. If the Senate refuses to seat Burris, presumably he can bring a suit based on the Adam Clayton Powell precedent. This would guarantee that the issue of who is the junior senator from Illinois would remain open for months or even years. And if the Senate votes to seat Burris but then decides to expel him, what grounds will it have? There is no allegation that Burris has done anything wrong, and his record argues to the contrary. Plus, he is African-American, unlike any current member of the Senate. Do Senate Democrats really want to expel him?
Contrafactual experiment: If Fitzgerald had not arrested Blagojevich and held his December 9 press conference, Blagojevich's appointment of Burris would have gone unnoticed and would have been almost entirely uncontroversial. Obama insiders would not have been greatly pleased but would have uttered no word of complaint. Senate Democrats would have routinely accepted Burris as a colleague. Republicans would have wondered whether they would have any chance of defeating Burris, who would then be 73, when the seat comes up again in 2010. Quite a different tableau from today's.