Let the games continue, Part Two

As John notes below, Senate Democrats blocked Roland Burris from taking his seat in the Senate today. Illinois Governor Rod Blagojevich duly appointed Burris to fill Barack Obama’s seat. This is Blagojevich’s prerogative as governor, and it’s difficult to perceive a legitimate basis for denying Burris his seat. Blagojevich has neither been impeached nor indicted, and there has been no suggestion that Burris was involved in any “pay to play” scheme.

The Senate is relying on the fact that the Illinois Secretary of State has refused to sign the document in which Blagojevich appointed Burris. As John points out, however, this doesn’t seem like a strong argument. The governor has the power to appoint Senators and I don’t see how the Secretary of State has the right to take away that power by failing to perform a ministerial act. By effectively giving the Secretary of State that right, the Senate Dems are misusing their power. This is, quite possibly, the shape of things to come.

Despite the weakness of their legal position on the merits, the Senate Democrats may be able to make their refusal to seat Burris stick. Burris’ recourse at this point would seem to lie in an action against the Secretary of State; courts would likely duck a suit against the Senate at least until Burris exhausts this other possible remedy. If he can get a court order forcing the Secretary of State to sign the paper and the Senate still won’t seat him, Burris will have a solid claim against the Senate, it seems to me. However, a court could still duck the dispute on the theory that it is a “political question.”

The Senate Dems may also be able to avoid serious political fallout over their refusal to seat Burris notwithstanding that, with Obama’s departure, there will be no African-American Senators in the absence of Burris. Obama has blessed the Senate Dems’ decision, and that probably provides sufficient cover.

Still, the current circus is at least a mild embarrassment for the Democrats, and one must question their wisdom in going to the mat over this. My guess is they over-reacted to the Blagojevich scandal. Now that the world has moved on, or would have but for the spectacle the Dems created, they probably wish they had not drawn a line in the sand. Some may be looking for a way out.

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