Rod Blagojevich's decision to appoint Roland Burris to Illinois' vacant Senate seat, even as the governor faces intense criminal scrutiny, is being treated as a crazy political power grab. It also seems very likely to be permanent.
A legal scholar writes in to say that precedent surrounding the Senate's right to not seat certain members seems very likely to fall in Burris' favor.
"My reading of Powell v. McCormack, 395 U.S. 486, is that the Senate probably can NOT constitutionally block Burris from being seated," writes the constitutional law professor. "Art. I, sec. 5 gives each House the power to judge the qualifications of its own members. Powell holds (inter alia) that the qualifications to be judged are those stated in the Constitution (see Art. I, sec. 3, cl. 3 and the 17th Amendment)."
"Burris has met all of those qualifications: he's over 30, been a US citizen for 9 years, he's an Illinois resident; he was appointed by the executive authority of the state to fill a vacancy, pursuant to Illinois law."
If either someone in Springfield or in D.C. tries to stop Burris from being appointed, it will be challenged and likely heard by the Supreme Court. Legally, it appears the Supreme Court would have to side with Blagojevich. Blagojevich is Constitutionally mandated to choose the next Senator. That's what he's done. There is no evidence that the choice of Burris was untoward and so, there appears to be no legal reason to block Burris. Such a showdown would play right into the Governor's hands and hand him much needed political capital. He's already endeared himself to some elements within the Illinois African American community just by picking Burris.
Now, imagine if his choice was rejected either by the Secretary of State or by the U.S. Senate and then it was litigated in the Supreme Court which decided in his favor. Which side would look as though they are doing their Constitutional mandated duty and which side would look as though they are stepping outside of the Constitution?
Furthermore, how far is the Democratic Party willing to take this given how insulting it would be to the African American community. The reality is that the Governor needs nothing more than a political showdown he can win, and he just found it. The farther his opponents take this the bigger a victory it will be once he wins. Frankly, he has nothing to lose anyway.
We've all heard that his potential impeachment hearing is a political not criminal process. What does this mean? On one level, it means that the Illinois House and Senate merely need to find a reason that everyone will accept to remove him. They need not find any act of criminality. The most obvious reason is that the scandal has made him unfit to Govern. Yet, he has just chosen a U.S. Senate pick and that person accepted. What a political gift Burris handed to Blagojevich. Is there any better proof that he is fit to govern than doing his Constitutionally mandated duty of choosing a replacement for Barack Obama? In fact, by having every other political force near him try and take this duty away, it is they, not him, that look as though they are unfit.
Just think about it. He will make this pick. The entire political world will attempt to stop it and likely the U.S. Supreme Court will side with him. Then, Illinois legislators will say he is unfit to govern. Nothing will sound more absurd if this episode plays out as I just described.
Then, impeachment will hinge on something relating to the idea that what he is alleged to have done is so extraordinary that he can't be allowed to continue. Here, again, if Blagojevich is crazy like a fox, he will still have an angle. I have said over and over that Blagojevich knows where all the proverbial bodies are buried. In such a case, all he needs to do is turn the impeachment into a kangaroo court. What Blagojevich did maybe the most brazen act of corruption, but it certainly is not out of the ordinary. Most of the folks about to accuse him of corruption are no less corrupt, just less brazen. If he turns the tables on everyone and throws accusations back at his accusers, what we'll have is a bunch of crooks proclaiming the Governor is not fit to lead because he's a crook.
As John Kerry once said that's like having Tony Soprano lecturing us on violence. Blagojevich can argue that if he isn't fit to lead, then most of the legislature will need to go with him. If he plays it right, he could even be portrayed as the crusader finally exposing the reality of the system in Illinois. If he did some sort of a vague mea culpa in which he acknowledged "mistakes", he could say that he is ready to use this opportunity to overhaul the system, but that he will not be "lectured on honesty and integrity by the likes of Emil Jones and Michael Madigan". In fact, he will have a point. The audacious irony is that the Illinois legislature is in no position to lecture him on corruption. They are no better. An impeachment in which his alleged crimes are on display would be nothing more than that. If it came down to trying to remove him from office for his alleged crimes, you can bet that every piece of dirty laundry would be aired before he was removed. If he's crazy like a fox, that's exactly what he should do.