From NBC's Pete Williams
In a tellingly candid statement, a senior aide to Senate Democrats this week said, "we're examining the precedents" and looking to see if "there may be grounds" for refusing to seat Roland Burris as the replacement for Barack Obama.
Despite their uncertainty about whether they have the authority, Senate Democrats have insisted they will refuse to let Burris take his seat on January 6th when new members are sworn in. Legal scholars are engaged in a raging debate over whether the Senate has the constitutional authority to block Burris, if the refusal is based solely on allegations that Blagojevich conspired with others to use his appointment power for corrupt purposes.
Here are the two key questions: First, the Constitution gives Congress the power to refuse to seat someone based on irregularities in an election. But does that authority allow it to review an appointment by a state governor? Though that question has never been explicitly answered before, many experts believe the answer is probably, yes.
But then a much harder question arises: what's the test for declaring an appointment invalid? Is it enough for Senate Democrats to say, in essence, that there's something fishy about Blagojevich, making anything he does invalid?
Two constitutional law experts, Akhil Reed Amar of Yale and Josh Chafetz of Cornell, say the answer is yes. In a posting on Slate.com, they suggest that it's enough if the Senate finds Blagojevich himself suspect, regardless of whether the Democrats have actual evidence that impropriety was involved in appointing Burris.
"In this context, the Senate itself is a judge, in the words of the Constitution, and can decide facts for itself," they say.
"It is enough for the Senate to reject Blagojevich's appointee if a majority of senators are firmly convinced that Blagojevich is corrupt and that any nomination he might make is inherently tainted by such corruption," they argue.
But other legal scholars say such a generalized standard doesn't cut it, especially when there's no allegation that Blagojevich appointed Burris for some corrupt purpose.
Says Brian Kalt of Michigan State, "The law is that the governor fills this vacancy. That law was followed here. No one is claiming that Blagojevich broke the law in selecting Burris. In the absence of any such evidence -- let alone in the absence of an attempt to even look for such evidence -- the Senate cannot legitimately question" this appointment, he says.
Here's the probable scenario. The Democratic leadership will refer the issue of the Burris appointment to a Senate committee for further investigation. If it concludes he should not be seated, he could sue, and the issue would likely end up in the US Supreme Court. But the Democrats hope that while the committee is considering the issue, Blagojevich will leave office.
** UPDATE ** From your First Read editors: In a new opinion piece at Forbes.com, Harvard University constitutional law professor Laurence Tribe also argues that that the Senate has the authority to refuse to seat Burris. Tribe, who taught Obama at Harvard and has served as one of his legal advisors, argues that the Senate's early determination that it would not seat anyone appointed by the Illinois governor reflected the correct focus on the process of the appointment and not the individuals involved. He writes: "That the Senate's early December decision to exclude any Blagojevich appointee reflected nothing about the particular person he appointed cuts for, not against, leaving the matter to the judicially unreviewable judgment of the Senate itself."