Controversy over seating U.S. senators is as old as the country itself.
"We have a 400-page book filled with these instances," says Senate Historian Donald Ritchie.
But nothing in that tome is analogous to the current brouhaha over Illinois Gov. Rod Blagojevich's appointment Tuesday of former state official Roland Burris to fill President-elect Barack Obama's unexpired term.
No occasion of a governor who, facing federal charges that he tried to sell a Senate seat to the highest bidder, defied his own party leaders and appointed a senator anyway?
Nope, says, Ritchie.
"There is no duplicate, no historical footing at all," the historian says. "Anything could happen here."
Legal Limbo
The lack of Senate precedent leaves Senate leaders with little to go by as they confront the political conundrum of the vacancy. The chamber's Democrats all signed a letter vowing to reject any Blagojevich appointment, but that was before the governor announced an appointee who would be the only African-American in the new Senate.
Overnight, the yet-to-form Senate faces a spirited legal and political debate over what it can and can't do. Or maybe should and shouldn't do. After all, the majority needs every vote it can find if it is to defeat potential filibusters and send the new president major crisis legislation to sign in the first weeks of his administration.
That explains the sudden interest in how resolutions of past disputes could inform the Senate's response to this one.
"Hey, we needed a little fun in this country right now, didn't we?" says Earl Maltz, a professor at Rutgers University School of Law who has been among scores of constitutional experts weighing in on the Blago/Burris controversy.
Does The Senate Have A Choice?
There is one issue on which Maltz and most other experts appear to agree: A 1969 Supreme Court decision renders it almost impossible for the Senate to outright deny Burris entree to its august chamber.
The case involved the House's refusal to seat New York's Adam Clayton Powell Jr. on issues of ethics. The high court held that the House could not deny a seat to a duly elected congressman who met constitutional age, citizenship and residency requirements for the office. The House could have seated Powell, the court found, and then expelled him with a two-thirds majority vote. But it couldn't mess with the votes of the people.
"Under Powell v. McCormack, the Senate must seat Burris," says Erwin Chemerinsky, dean of the University of California, Irvine's law school. "It can only refuse to seat him if they were to determine that he is not 30 years old or has not been a citizen for nine years or is not a resident of Illinois."
Says Maltz: "Burris was duly appointed — maybe by someone many consider a real scum. But there's no 'real scum' exception."
Likewise, there is growing consensus that the Constitution's 17th Amendment gives Blagojevich, the sitting governor, the right to make appointments to fill Senate vacancies — federal charges notwithstanding.
"Blagojevich is the governor, and Illinois has empowered him via the 17th Amendment to make an interim appointment," says Douglas Kmiec, a constitutional law professor at Pepperdine University School of Law. "Illinois can shorten the Burris term by calling for a special election, but not deny him the term."
Options Left To Senate Democrats
So, if the 17th Amendment gives Blagojevich the right to fill the Obama vacancy, and Supreme Court precedent strongly suggests that the Senate has an obligation to seat Burris, where does that leave Senate Democrats?
Georgetown University law professor Mark Tushnet suggests a few paths Senate Democrats may consider. They could assert that the appointment, shadowed by the pay-to-play scandal, was inherently unfair in the same way an election can be determined to be unfair.
"Powell doesn't deal with the fairness of an appointment," Tushnet says. "It might be they can say that the questions about the integrity of the process are so serious that we'll deny a seat."
But that is complicated by the fact that there has been no evidence that Burris was in any way involved in Blagojevich's alleged illegal activities, and he has a long and respected record in Illinois.
"I don't discount the political aspect of Burris as an apparently completely clean, popular African-American Democrat," Chemerinsky says. "I'm still perplexed as to why the Democrats don't want to seat him." And also risk, he says, having Burris sue.
Is Delay The Best Course Of Action?
Bottom line, say Tushnet and others, the Senate will most likely avoid constitutional and legal confrontations by delaying seating Burris. Democrats could achieve this by referring the matter to the committee charged with investigating the circumstances surrounding Blagojevich's choice. That would give Democrats a bit of time to allow Illinois impeachment proceedings against the governor to play out, Tushnet says. Potentially, Lt. Gov. Pat Quinn could ascend to the top spot and make an appointment not clouded by Blagojevich's legal troubles.
"And I don't think it's unreasonable that Quinn would also name Burris," Tushnet says — a scenario that would solve many problems for the Senate, both in terms of racial harmony and in terms of resolving the legal issues. If Burris is seated, any suits seeking to force the Senate's hand would become moot.
Though Senate historian Ritchie could find no case comparable to the current controversy, he says there is one constant.
"The Senate," Ritchie says, "has always acted in a judicious manner."
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