Scott Lemieux observes that what the Senate Democrats are threatening to do in refusing to seat Roland Burris is probably illegal:
The Supreme Court ruled 8–1 (and 8–0 among justices deciding on the merits) in Powell v. McCormack that “in judging the qualifications of its members, Congress is limited to the standing qualifications prescribed in the Constitution.”
This is to say that Congress gets to offer definitive rulings on, say, a dispute over whether or not a Senator is really 35. But nobody disputes that Blagojevic is governor of Illinois. And nobody disputes that the Illinois Senate seat is vacant. And nobody disputes that the governor of Illinois is supposed to fill Illinois Senate vacancies. And nobody disputes that Burris was chosen by Blagojevic. And nobody disputes that Burris possesses the standing qualifications prescribed in the constitution. So it seems to me that unless the Senate has some reason to believe that Burris did something corrupt to obtain the seat, there’s neither grounds for expelling him nor for refusing to seat him.
On top of all that, I would have to say that Powell seems like a correctly decided case and that it would be right to apply the precedent to Burris’ case. It’s fine to say that the honorable course for Burris would be to have refused the appointment, but that’s different from saying that the Senate should be able to refuse to seat him merely because having him there would be politically awkward. Giving the Congress the power to arbitrarily exclude duly elected or appointed members seems like a seriously bad idea the more I think about it.
Additional observations: It’s weird for the Senate to get holier-than-thou about this given that one sitting senator is a family values advocate with a taste for hookers and that there was a bipartisan love-in staged on the occasion of Ted Stevens, convicted felon, departing from the Senate. If these guys can get weepy about Stevens, surely they can handle the vague air of impropriety hanging around Burris.
Also — this thing with governor’s appointing senators is one more of the various procedures of American government that makes no sense. Vacancies should be filled by special election.