Can the Senate Refuse to Seat Blagojevich’s Appointee?

Politico and MSNBC are reporting that the Senate Democratic leadership is indicating its refusal to seat Roland Burris, who Illinois Governor Rod Blagojevich today indicated he will appoint to fill President-Elect Obama’s vacant Senate seat.

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.

Presumably, they could seat Burris and then expel him, but that would require a 2/3 vote, which would be hard to muster given that, by all accounts today, Burris is personally unobjectionable.

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. What are the odds that Blagojevich would appoint him corruptly in the middle of this investigation?

If I were a leader in the Senate, I would confer with Sen. Durbin and Illinois state officials, and see what they think. I might hold some hearings to find out more about the circumstances of Burris’s selection. But I would not say that the Senate can just refuse to seat Burris.

You may also like...

17 Responses

  1. Kuyper says:

    I hope Harry Reid knows what he’s doing. If the Senate refuses to seat Burris, the case would almost certainly end up before the Supreme Court, like Powell before it. During that time, Illinois would be missing a senator, and the Senate would be missing one Democratic vote at a time when the Senate Democrats need every single vote they can round up.

  2. A.W. says:

    Well, here is an intriguing “out” for the congress. They could “find” that he is not a resident of Illinois, however obviously he is. Even if it is 100% clear he is, would a court have the right to over turn it?

    Anyway, this won’t necessarily cause there to be a vacant seat. he gets bumped and then congress says “either try again, or appoint someone else. ball is in your court.”

    But Blago is officially an a–hole to do this. as if he wasn’t already.

    Oh, and don’t we all love to see the race card being played here?

  3. Jon S says:

    They could “find” that he is not a resident of Illinois, however obviously he is. Even if it is 100% clear he is, would a court have the right to over turn it?

    A careful reading of Powell compels only one conclusion, which is that a court would NOT have the right to overturn that decision, even though it is manifestly erroneous. The Court in Powell affirmed that the Congress was the SOLE judge of qualifications and that its decisions in that regard could NOT be reviewed by a federal court. What they held in Powell was that the Congress could not add qualifications (beyond age, residency, valid election, etc.) for which they are the sole judge. It may sound odd, but if you give Powell a read, you will see that the opinion says exactly what I say.

  4. Theresa says:

    Harry Reid’s statement could be interpreted in one of two ways – either Burris will not be granted a seat in the Senate, or Burris will not be allowed to sit with the Democratic Party once in the Senate. My understanding though is that given precedent Reid may not have the power to deny Burris entrance into the Senate, and should Burris become a Senator, it seems that Reid would not want to deny his party any additional voting power.

    But for Burris, this seems tantamount to political suicide – that he is risking his credibility and career by taking this appointment.

  5. Tully says:

    Theresa, Burris is 71. He’ll get two years of Senate pay and perks. I don’t think he’s all that concerned about future elections–ending his career in the US Senate would cover it.

  6. Brian Kalt says:

    Actually, A.W. and Jon S, if you check out the specific language of Article I, sec. 3, cl. 3, it says: “No person shall be a Senator . . . who shall not, when elected, be an Inhabitant of that State for which he shall be chosen.”

    This allows for the argument that Blago could have appointed someone from another state, and that if Burris is from another state he’s still qualified. After all, he wouldn’t have been elected without being a resident.

    Personally, I don’t read the clause as allowing non-residents to represent a state in the Senate. For structural reasons, I take it as a timing provision: senators must be residents, and they must be residents when chosen, not just when they get sworn in. But the plain text leaves an opening (thanks to Seth Tillman–who I presume would drive through that opening–for pointing it out to me).

  7. Mark says:

    Of course Harry Reid doesn’t know what he’s doing. He made an outrageous threat that he would not seat anyone nominated by Blago, and now he’s scrambling to save face. Don’t expect Dingy Harry to verify his Constitutional powers before making a political statement.

  8. Howard Wasserman says:

    Jon S:

    I am not as certain as you are on the political question doctrine. In FN 42 of Powell, the Court explicitly leaves unresolved and uncommented on the question of whether P/Q/D would prevent a court from reviewing a house’s factual finding that a member did not meet one of the enumerated qualifications. The structure of Powell is confusing–the discussion of the merits of the claim (whether a house could add qualifications) is folded into the P/Q/D/ discussion.

    The idea of P/Q/D (theoretically) is that a *claim* is not justiciable because, inter alia, the legal and factual issues that form the basis for the claim are committed to a coordinate branch. Well, assume that Burris is appointed, not seated, and decides to sue–his claim would be that he was not seated when he was entitled to be seated. But if Jon S is correct in his reading of Powell, then justiciability turns on the basis for the decision over which Burris would be suing. It is nonjusticiable if based on the enumerated reasons (age, residency, validity of selection), but justiciable if based on other, additional reasons.

    The first problem with this is that justiciability is being determined not at the level of the claim (“you cannot challenge this Senatorial action”), but at the level of the reasons for the decision that forms the basis of the claim (“you cannot challenge this Senatorial action when based on these reasons”). I cannot think of another situation in which P/Q/D analysis takes that form. The second problem is that, in order to determine justiciability, a court would have to look into the Senate’s reasons for refusing to seat. If the Senate relied on enumerated factors the court dismisses on justiciability (i.e., jurisdictional) grounds; if the Senate relied on other factors, the claim is justiciable. But then, if it is justiciable, Burris per se wins under Powell, because the Senate cannot add qualifications. The third problem is that the court would have to look into the reasons for the Senate’s decision, perhaps even examining whether a decision purporting to rely on an enumerated reason (residency) was pretext for an improper reason (Senate Dems were just pissed at Blago and did not want to seat his guy). But the whole point of P/Q/D is to immunize certain decisions by other branches from any judicial inquiry. This approach flies in the face of that purpose.

  9. mls says:

    Jon S’s hypothetical is interesting, but it is unlikely that the Senate would try to deny Burris a seat based on lack of “qualifications.” Instead, as Brian Kalt indicates, the Senate would most likely argue that it has the power to judge an appointment analogous to its power to judge an election. This is a reasonable position (supported by prior Senate precedent), but it creates a certain awkwardness if the Senate wants to contend that its decision is immune from judicial scrutiny under the political question doctrine. The power to judge appointments, unlike the power to judge elections or qualifications, is not textually committed to the Senate.

    If the Senate refuses to seat Burris, he may very well have a justiciable claim against it (or, more precisely, against the Senate officer responsible for paying Senators their salary).

  10. A.W. says:


    Its funny how you read things 100 times and still miss something. So let me alter my idea: pretend he is not old enough, even if he really is.

    I still think the Supremes would be hard pressed to overturn that.

  11. Mwalimu Daudi says:

    Do we have a Senate or a House of Lords? It seems that any institution that seats fine, upstanding citizens like Byrd (a KKK Grand Wizard), Webb (a gun smuggler), and Kennedy (a murderer) can only be improved by the likes of Blago and Burris.

    Consider this scenario. Suppose that in 2010 Republicans make gains but not enough to take control of the Senate. What is to prevent the remaining Democrat majority from using the “Blago Dodge” and refuse to seat one or more of the new GOP senators because of … whatever excuse they can cook up?

    Democracy is already reeling from the blows inflicted by ACORN and other fraud groups. Having one political party being able to pick and choose the members for the Legislative branch is an invitation to dictatorship.

  12. A.W. says:


    You make a reasonable point, and i am closer to you politically than i think you think i am, but still… in the limited case of appointment by a corrupt governor on his way out, I don’t think this is such a dangerous precedent.

  13. Vladimir says:

    I’m a bit baffled by the claim that the Senate will have to seat Burris. Until I started reading blogs this afternoon, I was convinced Harry Reid was on terra firma in refusing to have Burris seated. Maybe I’m just a vulgar legal realist, but it seems to me positively silly that a court would require the Senate to seat Burris.

    The argument relies less on formal case logic than on the obvious: Blogo’s is an insane likely criminal who was recorded tainting the appointment process in the most corrupt way possible; his decision to appoint Burris is hubris cubed; and the Senate democrats of course have every right not to honor his outrageous actions. To say that there is a case that, read formally, stands in the way of the Senate Democrats doing the right thing seems to me to represent everything wrong with formalism.

    So what do we do in such situations, when the a superficial reading of a case seems to preclude doing the obviously sensible thing? Must we just apply cases without takig context into account? I certainly hope not. Instead, we ought to read the relevant precedent narrowly. Can Powell be so read, convincingly? I don’t see why a competent lawyer can’t distinguish it persuasively. For surely the Powell Court didn’t contemplate a situation as comical as this one; it was writing, for goodness sake, about the refusal to seat Adam Clayton Powell, D-Harlem, in the 1960s. Doesn’t this (racial/political) context make all the difference in the world?

    So if the Court in Powell wrote a bit broadly, surely they would have intended a small carve out for a case such as this. So why can’t we say that Powell v. McCormick is about elections, not appointments, which raise some pretty distinct issues (such as the possibility that the whole process was tainted by bribery — which is akin to a whole election tainted by graft in any case)?

    Doesn’t Karl Llewellyn’s notion of “situation sense” pretty much cover this?

  14. David says:


    Your analysis in interesting but flawed. The danger and beauty of precedent is that it cannot be ignored because the facts are bad. “Bad facts make bad law.” Unfortunately,appointing Burris because of hubris is not a violation of Illinois state law. If there is no evidence that the law was broken when Blagojevich appointed Burris, the US Senate will be forced to rely on its constitutionally provided right to refuse to seat Burris. I personally don’t think that the US Senate should have involved itself in this controversy. They should allow the State of Illinois to resolve it. Appoint Burris until Illinois legally elects or appoints someone else to fill the seat.

  15. johnjack says:


  16. Adam says:

    I am a little surprised that nobody in this debate is mentioning Nixon v. United States, 506 U.S. 224 (1993). The emphasis is properly on Powell, don’t get me wrong, but I think Vladimir makes a useful point that the facts of Powell are arguably distinguishable, or at the least, its vintage leaves it open to potential revision. That is, if Nixon had not come along. Correct me if I am wrong, but I believe Nixon had an outright majority that was willing to say that the impeachment power (a power that was similarly “textually committed” to a house of Congress) was totally unreviewable, up to and including something like the use of a coin flip to decide whether to remove an official from office.

    It seems sensible that the age of the Powell decision opens it to criticism for an unforeseen situation like this…IF it had not basically been anticipated in Nixon and apparently endorsed.

  17. Political Anal-ist says:

    JB, et alia:

    If one accepts (and I think most people here do) that an appointment qualifies equally as an election in terms of constitutional evaluation, then there is much room for the Senate to take actions in pursuance of preventing Mr. Burris’ seating.

    Since the Senate is allowed to be the Judge of all elections to its body, and given that the constitution does not set out any rules by which such judgement must be made, nor does it even imply that the Senate must follow its own historical precedence, it would seem that the Senate could refuse to seat him or reduce his effectiveness by any of the following some several mechanism:

    1) Roland Burris’ appointment/election has not yet been certified by Mr. Jesse White, Secretary of State for the State of Illinois, and thus is ineffective until such certification has been executed. Indeed, it is reasonable for the Senate to declare the document (in its uncertified form) potentially fraudulent (as it is absent the certifying seal) and refuse to accept that he has been appointed properly, and, perhaps, initiate its own investigation into the matter.

    2) Presuming that even a valid appointment of Mr. Burris would only last until 06 JAN 2011 (as by then a new elected Senator would be sworn in, be it Mr. Burris or anyone else), the Senate could seat him, then take the following some several steps via a simple vote:

    a) Reduce Mr. Burris’ salary to zero or $1;

    b) Strip Mr. Burris of his future retirement pay for any service between 06 JAN 2009 – 06 JAN 2011 or Reduce Mr. Burris’ retirement pay for any service between 06 JAN 2009 – 06 JAN 2011 to no more than $1 per annum

    c) Withhold funding for any staff members for him

    d) Suspend his ability to vote between 06 JAN 2009 and 06 JAN 2011

    e) Refuse to allot him any floor time to speak until 07 JAN 2011.

    3) The Senate could swear him in, and then immediately expel him, or compel a vote to do so, and that could be effective immediately. Additionally, such expulsion could strip him of any current or future benefits.

    4) The Senate could pass a bill refusing to pay him, strip him of his future retirement, and refuse to fund his office or staff, basically forcing him to resign and become incapable of fulfilling his office.

    Despite the fact that I am a conservative Republican, I would hope that he would not be precluded from running for this Senate seat in a Special or normal election cycle, or being appointed by the next Governor (should Blagojevich resign or be impeached, and removed from office).