Let me first recite the catechism: Blagojevich is a joke, an embarrassment. And I think accepting the appointment from Blagojevich reflects poorly on Burris's judgment (though not in any fatal, ominous way, just a bad choice).
But Blagojevich is the governor of the Illinois. And the Governor appoints senators to vacant seats. He hasn't been convicted of anything, which is no mere technicality. And I don't think anyone has seriously claimed that this appointment is tainted by corruption.
If there was a real belief that Burris's appointment had been bought, then I think more aggressive and expansive refusal would be justified. But as I said, I don't think anyone is really suggesting that. So as awkward and untoward as the whole thing may be, I really question the wisdom and possibly also the legality of not swearing him in. Rules are rules.
I could be persuaded otherwise. And I'm not losing much sleep over Burris's plight. But rules are rules. And I'm not sure what's being accomplished with this spectacle.
-- Josh Marshall
The bunch at Balkinization, except for one dissenter, disagree on what the "rules" (which are different from strategic etc. concerns) are. They cite others who do too. Why does Josh disagree? I put aside the immediate issue of the technical issue of the Secretary of State notarizing or whatever a form. That is trivial and not the real reason this is being delayed.
The reason is that the governor is tainted as is whomever he appoints. Tainted because there appears to be evidence he wanted to sell the seat. This is not just a willy-nilly decision to reject someone the Senate does not like. Claims it is racist, as made by some moron who some suggest has a thing against Obama anyway, is also garbage. The Senate Democrats (rather the Senate as a whole, since the Senate Republicans want an election to have a shot at the seat) upfront, before this idiot decided to make a spectacle of himself (yeah, blame the victim!), that they would look at askance at any pick. And, this is in no way unreasonable, if in some fashion open to debate, since he is not charged yet etc.
Art. I says Congress has the power to "judge" things. The Seventeenth Amendment changes who elects senators as a whole, but does not change this matter, even the appointment option in case of vacancies just repeated from Art. I.* Judging includes "elections" and "returns," which is different from a 1960s court case involving qualifications in a presumptively legit election. Judging "returns" includes the official certificate of election. One way to "judge" is to determine if the pick is legitimate as a whole, since an illegitimate pick could not be legitimately certified. As with a jury (think OJ) declaring innocence, more so since that involves liberty or even the life of the defendant, there is no detailed rules here.
The body in question has plenary discretion, just as the U.S. Supreme Court said it had (a few justices wanting some basic due process rules) in cases of impeachment. Since this involves seating of senators, not the impeachment of a member of a separate branch (especially one with life tenure), such discretion is less troubling. No matter. If you want to interpret the Constitution (surely not compelled by text alone) to have some standards, fine. Burris is not being singled out here. There is really some appearance of impropriety. If Illinois determined innocence, it also might be different. And, discretion can include political or pragmatic decision making, just like a prosecutor or whomever might do in a given situation.
[The Senate does this for appointments all the time -- clearly acceptable picks for some position might be rejected because of some taint of corruption, or none at all. Congress acts arbitrarily often enough, and sometimes even legally. Juries also "nullify" when there appears to be clear guilt. This again might not be ideal in a given situation, but the discretion is part of the equation. You know, "rules are rules" and all that.]
And, some investigation would be warranted anyway, even if there was "of course" no taint of corruption. So, he would not be seated today. But, there is some taint! All total, even if we figure seating the guy makes sense pragmatically (push for an election etc.), I think the claims of some illegitimate "spectacle" and his "plight" is just a tad ridiculous. This is so even if one thinks that even if the text is not clear, that we should as a whole trust the discretion of local elected officials, the assumption of innocence, or whatnot. I do not think the balance of factors really warrant this, especially given the symbolism of the seat, but I could be wrong.
But, it is a bit annoying how firm some are, even some like JM, that suggest not doing this is somehow clearly illegitimate.
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* If this was an election, it might be argued that the 17th Amendment suggests we should be especially concerned with overturning elections by the people. I doubt this -- originally, we should have been concerned with overturning elections by state legislators that were elected by locals. The concern might have changed somewhat, but the discretion did not.
But, as to appointments, though I'm not sure if some realize it, the option was always there. In fact, to be totally literal, the amendment does not repeat the provision about judging elections. Does this mean the Senate cannot do so at all? The general assumption is no; and, the text also does not mean other rules as to certifying state appointments etc. suddenly are waived.