I wrote two days ago on the Senate's dilemma about whether to seat Roland Burris, whom Illinois Gov. Rod Blagojevich appointed to succeed Barack Obama. Now, Walter Dellinger, head of the Justice Department's Office of Legal Counsel and acting solicitor general in the Clinton administration, weighs in on the question of whether or not Burris should be seated. His answer: yes. He notes that he clerked for Justice Hugo Black in 1969 when the Supreme Court decided Powell v. McCormack, which held that the House could not exclude Adam Clayton Powell Jr. after he was duly elected and met the constitutional requirements for office. Justice Black, he says, was troubled by the British House of Commons' practice of not seating members whom a majority opposed. I encountered this phenomenon in my research for Our First Revolution: The Remarkable British Upheaval That Inspired America's Founding Fathers. In the late 17th century and through most of the 18th century, many of those purportedly elected to the House of Commons were barred from taking office while their seats were contested, and it seems to have been common practice for the House's effective majority to decide those cases on partisan lines. A little like Minnesota, some might say. In any case, Dellinger concludes by noting wisely that there will be no legal controversy if the Senate seats Burris, but there likely will if it refuses.
Of course, there's some politics here. Illinois's Democratic legislators could have summoned the votes (even over Blagojevich's veto, with Republican help) to pass a law stating that the seat could only be filled by a special election—the course Sen. Dick Durbin favored immediately after Patrick Fitzgerald's press conference accusing Blagojevich of trying to sell the Senate seat. But that would give the Republicans a chance—probably only an outside chance but a chance—of winning the seat. So, the Democratic legislators have brought impeachment proceedings against Blagojevich instead, a lengthy process; and U.S. Senate Democrats thought they could deter him from making an appointment, or anyone from accepting one, by declaring that they wouldn't seat the appointee. Now Blagojevich and Burris, neither of whom has for different reasons much of a political future otherwise, have taken advantage of the opening the Illinois Democrats have given them and have called the U.S. Senate Democrats' bluff. The latter would like to see someone else in the seat, because they think Burris would be a weak candidate in 2010. He could lose the general election. Or he could spark a multicandidate primary battle with an outcome no one can confidently predict.
The Senate Democrats, like the 17th and 18th century British parliamentarians Justice Black was troubled by, are trying to manipulate the process to maximize their short-term partisan gains. But at some point—and we may have passed it—you come to appear too clever by half. Try to manipulate the process too much, and the voters may enjoy frustrating your plans. Maybe, as Walter Dellinger suggests, the Senate Democrats should just play by the rules and take their chances with the voters.
As of this afternoon, it looks as if Senate Democrats are backing down and preparing to seat Burris. Under Illinois law, he will be the senator for the next two years until 2010, when Obama would have been up for re-election had he not resigned to become president. Illinois Democrats will now have the task of recruiting a candidate who can beat Burris in the primary and be a viable general election candidate, breathe life into a Burris general election candidacy, or referee a multicandidate primary the results of which are impossible to foresee. Presumably Illinois's Democratic state legislators will not pass a law declaring the seat must be filled by election; that would give Republicans a chance to win the seat and might leave Burris in a position to argue that his appointed term cannot be cut short by an ex post facto act of the legislature. (I can see arguments on both sides of the issue on that one.) Hey, who knows, maybe Burris will turn out to be an outstanding senator.