From NBC's Pete Williams
Although the Senate today turned away Roland Burris, there's a growing number of legal scholars who believe that the US Senate does not have the authority to refuse to seat him.
The Democratic leadership argues that it has the duty to protect the Senate's integrity and that allowing a governor accused of corruption to appoint a senator would taint the body. But that argument is rejected by a growing number of both liberal and conservative legal scholars.
Among the liberals, professor Erwin Chemerinsky, dean of the law school at UC Irvine, writes in today's Los Angeles Times: "Allowing the Senate to exclude Burris on any except the narrowest of grounds would create a dangerous precedent. It could open the door to the Senate or the House overturning the will of the people and excluding representatives under one or another pretext. If Burris -- whose appointment meets the legal test, no matter what you think of Blagojevich -- is not seated, other properly elected or appointed representatives also are at risk."
Among the conservatives, Bruce Fein argues that Blagojevich is still the governor, despite the accusations. In today's Washington Times, he says: "That Mr. Blagojevich was under a dark criminal and impeachment cloud when he elevated Mr. Burris is beside the point. President William Jefferson Clinton did not forfeit his power to appoint, sign legislation, or negotiate treaties during his impeachment ordeal. And Democrats are not questioning Mr. Blagojevich's general authority to discharge his gubernatorial responsibilities until or unless he is impeached, convicted and removed from office. Mr. Burris' appointment has been made a lone exception for partisan political reasons."
Some constitutional experts are solidly on the side of the Senate Democrats, including such notables as Harvard's Laurence Tribe. But as this issue gets more attention among the scholars, there's an emerging view that the Senate is wrong.