Like I Said ...

My extensive education in the law (okay, I took a couple of business law classes in graduate school) prompted me to state yesterday that any action taken by the Democrats in the Senate to bar Illinois Governor Rod Blagojevich's appointee from being seated to replace Barack Obama would run counter to the law. On that point, I have some heavy duty support.

Law Professor Brian Kalt:

Can the Senate Refuse to Seat Blagojevich's Appointee?

I'm not sure where the Senate Democratic leadership thinks it gets the authority to not seat Burris. Under Powell v. McCormack, the ability of the Senate to exclude someone would seem to be limited to judging that he hadn't won the election (not applicable here) or that he is not qualified (30 years old, a resident of Illinois, and a U.S. citizen for nine years). Their discomfort with Burris's appointer doesn't enter into it.

My best guess is that the Senate Democratic leadership would argue that the Senate's authority to judge the elections of its members extends by analogy to judging the appointments of its members; and that a corrupt election would be cause to not seat someone, so a corrupt appointment should be too. But surely this sort of determination would require some sort of investigation rather than a conclusion that Burris is unfit for office (even if the Senate could get away with this constitutionally, it shouldn't try to). Burris has not been connected to the corruption case as far as I know.

Perhaps the Senate Democratic leadership will simply take the law into their own hands and deny the appointment without a legal basis. Then our rapid descent into the realm of Banana Republic would be certified as having been successfully achieved.

I wouldn't put it past them either.