Fordham Law


Democrats Seek to Block Appointee to Obama’s Seat

Abner Greene in The New York Times, December 31, 2008

Media Source

Democrats Seek to Block Appointee to Obama’s Seat
By CARL HULSE

WASHINGTON — Within an hour of learning on Tuesday that Gov. Rod R. Blagojevich of Illinois was about to name a Senate successor to President-elect Barack Obama, the Senate Democratic leadership drew a clear line in the sand: Anyone appointed by Mr. Blagojevich, the embattled Illinois chief executive, would not be accorded Senate membership.

But that declaration has touched off questions of whether Democrats have the power to keep out Mr. Blagojevich’s pick, Roland Burris, a former state attorney general. It is likely that the issue will end up in court.

Democrats said they were confident of their standing under Article I, Section 5 of the Constitution, which says “each House shall be the Judge of the Elections, Returns and Qualifications of its own members.” On rare occasion, the Senate has denied seats to candidates whose election outcome was in doubt or who were caught up in corruption.

Yet constitutional experts question the extent of that authority, particularly in light of a 1969 Supreme Court decision in the case of Adam Clayton Powell Jr. of New York. The court found that the House could not bar Mr. Powell, who had been accused of financial impropriety, if he met the constitutionally determined qualifications for age, citizenship and residency.

“I think the best reading of the text of the Constitution and the Powell case together is that the Senate has to seat Burris,” said Abner S. Greene, the Leonard F. Manning professor of law at Fordham University School of Law.

The turmoil engulfing the Illinois seat added to an air of uncertainty surrounding the Senate, which convenes next week, after Democrats were only a few weeks ago celebrating an expanded majority of at least 58.

But with the session days away, the result of the Senate race in Minnesota remains to be determined, the status of the Illinois seat is up in the air and appointments have yet to be made for seats in New York and Colorado that are to be vacated when those holding them join Mr. Obama’s cabinet.

Senior Democratic aides said the party leadership decided to respond forcefully after first learning from Senator Richard J. Durbin of Illinois, the No. 2 Democrat in the Senate, that Mr. Blagojevich was ready to move despite earlier warnings from the Senate that he should step aside and allow his successor to name a new senator.

The majority leader, Senator Harry Reid, convened a call of his aides from his home in Searchlight, Nev., followed by a conference call among Mr. Reid, Mr. Durbin, Senator Robert Menendez of New Jersey and others. The unquestioned consensus, aides said, was that Democrats should make their position known before the governor’s announcement. Mr. Burris is an African-American, and the idea that Democrats would be preventing a respected black politician from taking a seat was raised. It was not considered a deterrent, however, since the issue they were focused on was the inquiry over the handling of the Senate appointment by Mr. Blagojevich.

“It had nothing to do with Burris,” said Jim Manley, Mr. Reid’s top spokesman. “Anyone picked by this guy would be tainted.”

A statement issued by the Democratic leadership said bluntly that anyone appointed by Mr. Blagojevich “will not be seated by the Democratic caucus.”

Still, the pointed statements made in Chicago on Tuesday by Representative Bobby L. Rush, who is black, left little doubt that Democrats would be accused by some of racism should they deny Mr. Burris his seat.

“There are no African-Americans in the Senate,” Mr. Rush said. “And I don’t think that anyone, any U.S. senator who’s sitting in the Senate, right now, want to go on record to deny one African-American from being seated in the U.S. Senate.”

Senator John Cornyn of Texas, the new leader of the National Republican Senatorial Committee, joined other Republicans in agreeing that Mr. Burris should not be seated. But Mr. Cornyn pressed for a special election, which would let Republicans compete for the seat rather than see an appointed Democrat fill it for the next two years.

“There is no other appropriate way for this process to move forward without the stench of corruption or political gamesmanship attached to it,” Mr. Cornyn said in a statement.

One rough parallel to the current situation arose in 1947 in a Senate dispute over whether the white supremacist Theodore G. Bilbo of Mississippi should be seated after accusations of voter suppression and campaign corruption. In that case, the Senate found itself deadlocked, and Mr. Bilbo died before the disagreement could be resolved.