Law Professor Jack Balkin's well considered views on the Senate's authority to reject Burris

[Stop Cornyn]

Balkin describes the issue this way:

Article I, section 5 reads: "Each House shall be the judge of the elections, returns and qualifications of its own members."

Hence the Senate may refuse to seat Burris for three reasons: because he is not qualified under Article I, section 3, because the election returns do not support him, and because his election was not properly conducted. ... Section Two of the Seventeenth Amendment modifies Article I, section 5. It states:

"When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the Legislature of any State may empower the Executive thereof to make temporary appointments until the people fill the vacancies by election as the Legislature may direct."

Thus, you might argue, the Senate must treat a person appropriately appointed by the executive authority of the state as duly elected for purposes of Article I, section 5.

But that is precisely is the basis of the Senate's refusal to seat Burris. In the Senate's view, Burris has not been properly appointed by the executive authority of the State of Illinois.... {because}, for starters, it looks like the Governor might be corrupt and was trying to sell the seat.

But, you might respond, the Governor has not been convicted of anything. Surely he is innocent until proven guilty.

True enough. But Article I, section 5 does not contemplate a criminal proceeding. Rather, it contemplates that the Senate will be the judge of the circumstances of election (or in this case, after the Seventeenth Amendment, an appointment.).

http://balkin.blogspot.com/2008/12/can-senate-refuse-to-seat-ronald-burris.html

[Yanez Houston Jordan]

1. Interesting analysis

[Stop Cornyn]

2. It bothers me that some sources are reporting this as a simple issue which has previously been

decided, which is clearly incorrect.

[MissMarple]

3. That seems like a bit of a stretch.

Wouldn't they have to have something substantive showing the "election" was flawed in order to refuse to seat Burris? Other wise pretty much anything goes. This is bad precedent given the propensity of the GOP to do what ever they think they can get away with, and then some.

[Xipe Totec]

4. Possible? Yes. Prudent? Don't know. Necessary? No. n/t

[ProSense]

5. Laurence Tribe

Blagojevich And The Constitution

[kevsand]

6. Balkin also freely admits he may be wrong:

Is the argument I have presented foolproof? Probably not. I can think of a number of different issues to raise in objection.

I do like the way he approaches things, and the way he writes, even when I disgree with him.

[Stop Cornyn]

8. Unabashedly. Neither side of this debate is holding a Royal Flush.

[madrchsod]

7. the democrats in illinois rejected burris

or anyone else blago appoints. secretary of state jessie white-a democrat- refused to sign burris`s certifcation. he will refuse to unless ordered by the illinois supreme court.

the impeachment of blago is supposed to start tomorrow and will be swift. i doubt there is anyone in either party that will defend him...he needs to be gone. he`s sullied the governorship of illinois far to long

[ThomWV]

9. The argument fails ...

His argument fails because the only person named in the Constitution to make an appointment is the Governor (executive authority) and Burris was denied his seat because his papers did not have a second signature (state's attorney general or some similar post, not sure which one). So he was rejected for no good reason, the Governor's appointment is all that is needed. No one claims that Burris' appointment is tainted by bribery or anything else. It is preposterous not to seat the man.