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Seating Burris


My position on the Senate’s authority to refuse to seat Roland Burris appears to be in conflict with several of the legal scholars I most admire (cf. Tushnet, Balkin, and Amar, but see also Levinson). My chances of persuading many people against that kind of all-star team are probably pretty remote, but I remain unpersuaded. To be more precise, I certainly agree that the Powell case can be distinguished. What I still don’t see as any compelling reason for why it should be distinguished. I still fail to see any good argument that Burris has not, in Balkin’s terms, “been properly appointed by the executive authority of the State of Illinois.” As far as I can tell, there is no serious question about the legality of Burris’s appointment per se — Blagojevich is still the governor of Illinois, and there does not seem to be a scintilla of evidence that he solicited or received a bribe to appoint Burris. Claims that the appointment were improper, then, have to rely on the much weaker tea of a “tainted process.” I wouldn’t be very convinced by this unless some evidence emerges that the impropriety extends to Burris, and moreover I agree with Ygelsias that on the narrow issue of Senate appointments the indictment of Blagojevich is extremely thin. It seems to me that Powell requires a better argument than “the governor who otherwise has the unquestioned legal authority to appoint an interim Senator is kind of a sleazebag.”

Of course, even if we were to assume for the sake of argument that the courts should defer to the legislatures in this instance, there would still be the political question of whether the Senate should exercise its authority. I don’t think it has any good reason not to seat Burris even if the courts would permit it, so I hope that reports that Reid will ultimately acquiesce are accurate.

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