Fordham Law


Senate Seat Dispute May Head to Court

Abner Greene in The Wall Street Journal, December 30, 2008

Senate Seat Dispute May Head to Court

By DAVID KESMODEL, DOUGLAS BELKIN and CAM SIMPSON


The burgeoning dispute over President-elect Barack Obama's vacated U.S. Senate seat could spill into the federal courts.

Embattled Illinois Gov. Rod Blagojevich, facing federal corruption charges, shocked the political world Tuesday by naming his choice to fill the seat, former Illinois Attorney General Roland Burris.

Top Senate Democrats immediately said they would refuse to seat Mr. Burris because of the allegations surrounding Mr. Blagojevich, who was arrested Dec. 9. But some legal scholars said that such a move might not stand up in court, if Mr. Burris chose to challenge it.

A prolonged legal fight over Mr. Obama's former Senate seat could complicate the Democrats' agenda in Washington. Without senators seated in Illinois and Minnesota -- where the Senate election is still being contested -- Democrats can count on the support of 57 senators. That means they will have to peel off three Republican lawmakers to defeat any Republican filibuster aimed at blocking legislation.

The argument for blocking the appointment of Mr. Burris is "weak" in light of provisions in the U.S. Constitution, said Abner Greene, a professor of constitutional law at Fordham University.

The Constitution allows each chamber of Congress to "be the judge of elections, returns and qualifications of its own members."

It takes a simple majority to refuse a seat under Senate rules, which would appear to give Democrats the power to block the Burris appointment. The Senate has refused to seat just four members since direct elections were instituted for the chamber in 1913, said Donald Ritchie, a Senate historian.

The extent of that power has been tested before the Supreme Court only once, after the House decided not to seat embattled Democrat Rep. Adam Clayton Powell Jr., in 1967 despite his re-election to the seat. The high court ruled that the chamber could not block Mr. Powell, because he was duly elected and met all of the other constitutional requirements for office.

Mr. Burris would be appointed, however, which could change the equation, Mr. Ritchie said. Senate lawyers are now closely studying the decision in Mr. Powell's case, which was decided by the Supreme Court in 1969.

Paul Sracic, chair of the political science department at Youngstown State University and a professor of constitutional law, said the Supreme Court case "is pretty clear that when judging the qualifications of members, each house is limited to age, citizenship and residency qualifications."

Mr. Burris meets all of these qualifications, Mr. Sracic said -- meaning he's old enough at 71 years old, a U.S. citizen, and a resident of Illinois. And while some scholars might argue that the 1969 precedent refers to an election, not a gubernatorial appointment, "the consensus of constitutional scholars is that [senators] would have to seat him."

Mr. Greene, the Fordham scholar, said Mr. Blagojevich hasn't even been indicted, and "the fact that there are clouds over Blagojevich himself, I don't see the argument for failing to seat Burris."