The Supreme Court Won’t Force Senate to Seat Blago’s Choice

Several commentators have suggested that the Senate cannot constitutionally refuse to seat Roland Burris, Illinois Governor Rod Blagojevich’s choice for Barack Obama’s vacant Senate seat. 

I disagree.

KING POWELL CONFERENCEThe belief that the Senate cannot constitutionally refuse to seat Roland Burris is based on the Supreme Court’s decision in Powell v. McCormack, 395 U.S. 486 (1969), where the Court held that the House of Representatives could not refuse to seat Adam Clayton Powell, an enormously popular African-American Congressman from Harlem who had won reelection despite a scandal involving misappropriating public funds and being held in contempt by a state court. 

But while the Powell case would certainly be at the center of any attempt to force the Senate to seat Burris, whether it is the controlling precedent that some commentators have suggested is far from clear. 

Powell was decided a very long time ago, in a very different factual and political context, and by a very different Supreme Court.

There are also significant differences between the facts in Powell and the situation of Roland Burris.

In Powell, the Supreme Court found that “in judging the qualifications of its members, Congress is limited to the standing qualifications prescribed in the Constitution. … Therefore, we hold that, since Adam Clayton Powell, Jr., was duly elected by the voters of the 18th Congressional District of New York and was not ineligible to serve under any provision of the Constitution, the House was without power to exclude him from its membership.”

Unlike Adam Clayton Powell, Burris was never elected, a fact that undercuts the Powell Court’s rationale that “A fundamental principle of our representative democracy is, in Hamilton’s words, ‘that the people should choose whom they please to govern them.’ … [T]his principle is undermined as much by limiting whom the people can select as by limiting the franchise itself.” 

In addition, although Powell was charged with misappropriation and fraud, no one questioned whether the election process itself was tainted by bribery or corruption. 

In contrast, the Senate’s refusal to seat Burris (or anyone is selected by Blagojevich) is based on allegations of bribery and corruption in the appointment process itself. 

The Court in Powell found that “Congress is limited to the standing qualifications prescribed in the Constitution. Respondents concede that Powell met these. Thus, there is no need to remand this case to determine whether he was entitled to be seated in the 90th Congress. Therefore, we hold that, since Adam Clayton Powell, Jr., was duly elected by the voters of the 18th Congressional District of New York and was not ineligible to serve under any provision of the Constitution, the House was without power to exclude him from its membership.” 

In the current situation, not only was Burris not “duly elected by the voters,” but the Senate is specifically empowered by the Article I, Section 5 of the Constitution to judge whether the election process  — or in this case, the selection process – of its members meets Constitutional standards: “Section 5: Each House shall be the judge of the elections, returns and qualifications of its own members…”

The extra-legal contexts of the Powell case and the Burris appointment are also vastly different. 

Adam Clayton Powell , Jr., had been an outspoken advocate for civil rights since the early 1940s and had many distinguished and powerful supporters, including many of his fellow members of the House of Representatives.  Many believed that the House’s refusal to seat Powell was based on racism.

While these factors were not an explicit part of the Supreme Court’s reasoning in the Powell case, they surely played a role in the Court’s decision.  In this instance, Burris stands virtually alone, and no one (with the possible exceptions of Rep. Bobby Rush, Governor Blagojevich, and perhaps Burris himself) could seriously question whether the Senate’s stated refusal to seat him has anything to do with his race. 
 
In any event, it is unlikely that the Burris appointment will ever make it to the Supreme Court.

There will almost surely be a new Governor of Illinois by the time the Burris appointment would reach the Supreme Court.  At that point, Burris’ claims might be moot — or the Supreme Court would have to resolve the separate question of whether an impeached (or resigned) governor’s Senate appointment can be rescinded by the subsequent governor. 

My assessment is that the Powell case offers little or no guidance in predicting what the current Supreme Court would do if Burris insists on taking the seat.

My guess is that, given the potential damage to the Democratic Party and specifically to Barack Obama, Burris will end up not pushing it to that point.

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