January 2, 2009
More on the Senate's Power (or Not) to Block Burris
Levinson's is the clearest and plainest reading of the text, especially the Seventeenth Amendment:
That is, I do believe that the text of the 17th Amendment, read in its most ordinary sense, allows a state to empower its governor to make a temporary appointment (even if I do concede that the Senate could refuse to seat the appointee if one thought that the governor had made the appointment as part of criminally corrupt bargain). Governor B. is the fully legal governor of Illinois unless and until he resigns or is impeached. To say that the untoward conduct of which he has been accused deprives him of the power that the Constitution authorizes Illinois to give him leads to all sorts of conundrums . . . .
Or as a commenter wrote on PrawfsBlawg:
The Seventeenth Amendment authorizes states to let governors fill vacant Senate seats by appointment. Illinois has authorized its Governor to do so. Blagojevichis is the Governor of Illinois. Blagojevich has appointed Burris.
(This commenter went on to write that "[t]here is no plausible legal basis for the Senate to refuse to seat Burris, and any Senator who votes to refuse to seat Burris is voting to violate the Constitution." I think this goes too far; there certainly are plausible (even if "too clever by half," as Levinson argues) arguments--links in my previous post--that the Senate may do this.)
The Seventeenth Amendment analysis (also distinguishing Powell v. McCormack) is the cleanest, and it leaves little, if any, room for the Senate to block Burris.
But as Lyle Denniston points out, any Senate action blocking Burris may be a nonjusticiable political question, anyway, and it therefore may never reach the courts (or Court).
"Political Question," of course, means that the political branches are better suited to deal with the problem than the judiciary. And here's a possible political solution (reported by Denniston): The Senate could investigate Blagojevich's appointment of Burris (and hold him in limbo) until something happens to Blagojevich. Then Blagojevich's successor (or, I suppose, a vindicated Blagojevich) could appoint a replacement without the cloud over Burris.
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