Lawrence Tribe has an interesting piece up at Forbes.com about the constitutionality of the Senate’s objection to the Burris appointment: Blagojevich And The Constitution. The whole piece is worth reading, however, two specific issue are worth noting.
First, Tribe argues that the Senate’s public proclamation not to seat anyone appointment by Blagojevich (instead of waiting for a specific appointee) strengthens the Senate’s position.
Second, the Senate has denied the seating of Senators in the past for reasons of corruption:
Frank Smith, initially voted a U.S. Senator in 1926 by the Illinois electorate and appointed to the Senate in 1927 by the Illinois governor, was twice excluded by the Senate on the basis that huge campaign contributions and corrupt practices involving Smith had clouded both his original election and his subsequent appointment.And the white supremacist Theodore Bilbo, elected by the people of Mississippi for a third Senate term in 1946, was not seated by the Senate because a majority deemed his election tainted by his corrupt campaign practices and intimidation of black voters.
A basic summary of Tribe’s argument is that the focus on process, not candidate, gives the Senate a constitutional argument to stand on.
Sphere: Related Content
January 3rd, 2009 at 10:40 am
Smith and Bilbo are totally irrelevant, precisely because there was in each case an “election” and “returns” that fell under the ambit of I-5-1’s “sole judge” power.
A17 provides no corresponding “sole judge” power over appointments. (And, therefore, no such power exists.)
Tribe and all the others are basically following a simple analytical flowchart:
Step 1. Dislike the plain text.
Step 2. Disregard the plain text.
Step 3. Congratulate yourself.
The rest is all sound and fury.
January 3rd, 2009 at 12:55 pm
[...] Steven Taylor agrees that “the focus on process, not candidate, gives the Senate a constitutional argument to stand on” while Jack Balkin notes that “temporal and political factors” are at play, too: a complicated process of bargaining and playing for time. And even if the Senate lacks the authority to refuse to seat Burris, the debate over whether it does (and the need for Burris to bring litigation to establish his right) also gives the Senate and the Illinois legislature room for maneuver. [...]
January 3rd, 2009 at 1:32 pm
Kip,
Given that Article I, Section 5 is the original language (if I am not mistaken) then I think it depends on what “election” means, since Senators were obviously not elected by popular vote when the language was installed. As such, it strikes me that it is not as much a stretch as you are making it out to be that that clause gives them to right to judge the process of selection.
Now, having said that, I am persuadable that this is not the case. It is clear to me that Blagojevich has the right to make the appointment, but it seems that, at a minimum, the Senate can delay that appointee from taking the seat, and may be able to bar the person.
Politically, delay seems a reasonable, doable and, perhaps, ultimately successful route.
January 4th, 2009 at 1:40 pm
“initially voted a U.S. Senator in 1926 by the Illinois electorate and appointed to the Senate in 1927 by the Illinois governor.”
Now that’s an odd sequence, isn’t it?
January 4th, 2009 at 1:50 pm
If “election” as used in Article 1, Section 5, does indeed grant the Senate the right to judge any selection process, even an “election” by a sole party, then I can see a possible Constitutional argument for the Senate to deny a seat to anyone that Blagojevich appoints. However, I think that’s an extremely weak argument, and I beleive that, contrary to Tribe’s position, the Senate declared intention to block Blagojevich’s appointment prior to the selection of Burris severely weakens their legal position. The Senate has essentially declared that they have pre-judged the appointment, which throws due process out of the window. Certainly, the Fifth Amendment protects the rights of the citizens of Illinois to have due process prior to being denied representation in the Senate. I understand that appointment may be delayed while the Senate conducts a trial as to whether the appointment of Burris was lawful, but the decision cannot be based on the government’s image. Tribe states:”The question for the Senate isn’t whether the Illinois governor truly is a crook, but whether reasonable observers would deem the process too crooked to produce a credible result.” Unfortunately, this analysis disregards and ignores the fact that People of Illinois cannot be denied representation based on political whims.
January 5th, 2009 at 6:30 pm
Well, with a two-thirds vote in the Senate, they could always expel Burris later.
I know in the 1800s Congress refused to seat a handful of legislators (Utah’s B.H. Richards comes to mind, but I believe there were others). It does look like the Warren Court severely restricted Congress’s role in “judging elections and returns” so I can’t predict how the Supreme Court would rule given the chance.