The Hoglawyer

I think Illinois governor Rod Blagojevich's choice to replace Barack Obama as Illinois senator is a fine man. It's not his fault that Gov. Blagojevich allegedly tried to sell the senate seat to the highest bidder. The U.S. Senate should just realize some things must be tolerated, and let him serve until a special election is held. In away it's the classic unstoppable force versus immovable object. Under Illinois law- Blagojevich has the authority to appoint Obama's successor. However, Senate Majority Leader Harry Reid is also correct that the Senate has the authority to decline to allow Roland Burris in, which is exactly what they have done. It's just an awful mess - in part because no one is saying that Harris is anything but an ethical, upstanding citizen who clearly had no role in being the Governor's pick. Although the Senate might think it has the authority to deny Burris - the court's have held otherwise in the past. What are the "qualifications" to be a U.S. Senator. Besides great hair ? The qualifications are minimal. A senator must be at least 30 years old, a U.S. citizen and "an inhabitant" of the state. Although the federal judiciary is loathe to interfere in such things as who is qualified to be a U.S. Senator when the U.S. Senate finds someone is not qualified, they have weighed in on this issue in the past. In 1969, the Supreme Court, in Powell v. McCormack, 395 U.S. 486, ruled that the House of Representatives could not refuse to seat Rep. Adam Clayton Powell Jr., a New York Democrat who was accused of putting his wife on the payroll and misusing travel funds to vacation in the Caribbean. Despite those charges, he had been reelected by his constituents in Harlem. Powell sued the Speaker of the House, the Sergeant at Arms, the Doorman, and the Senate Clerk. "The Constitution does not vest in the Congress a discretionary power to deny membership by majority vote," wrote Chief Justice Earl Warren. Congress may "judge only the qualifications set forth in the Constitution." To exclude a representative, Warren wrote that the House of Representatives should have voted on the issue, with 2/3 required to expel. The case essentially said you have to let a representative take the oath - then you can try to expel for lack of qualifications. The U.S. Congress had an affirmative constitutional duty to administer the oath to, swear in, and enroll upon the rolls, the candidate member as a Member of Congress. I think Reid has probably jumped the gun on this issue. For Burris' part, he is handling it well. He refusing to make it a racial issue, which is it not. He really has nothing to lose here, as this was an unexpected gift handed to him. Burris might win the battle but lose the war. Let's say he wins in court - and they have to let him have a vote. This doesn't mean they have to let him be part of the Democratic Caucus right? Nor does it mean they have to let him be on any committees, or even pay for his staff. There are all sorts of other ways the Senate can strip Burris of any meaningful power, even if he wins the right to be the official Senator. No matter what - it looks like the citizens of Illinois will be the ones who end up suffering.