It’s almost as much fun watching the law professors disagree over whether the Senate has the right to refuse to seat Roland Burris (it does; it doesn’t; etc.) as it is watching Senate Democrats try to balance appearing to oppose corruption with not appearing to exclude a black appointee.
Ann Althouse, another law prof, nicely points to the Democrats’ dilemma:
So at at time when there isn’t a single black person in the U.S. Senate, a black man arrives at the doorway and means to go forward to take what he believes is his rightful seat…
after which she presents a picture of George Wallace standing in the schoolhouse door over her caption: “Great Imagery, Democrats!”
Actually, Prof. Althouse’s chiding reference to the Democrats’ image problem suggests a legal argument supporting Burris’s right to claim the seat to which he was appointed that I’m surprised no one has yet offered in his behalf. So, with the perception and in the pioneering spirit readers have long come to expect from DISCRIMINATIONS, let me be the first:
The Senate may legally refuse to seat any prospective Senator if a majority of Senators deem the process of his or her election or selection to be too smelly … unless the prospective Senator is black, in which case excluding him or her might open the Senate to charges of racism.
You may think I jest, but I do not. This argument is perfectly consistent with the argument Democrats make day in and day out defending racial double standards in other arenas, and it is also perfectly consistent with the legal standard suggested by the eminent Harvard law prof Laurence Tribe in defense of the Senate’s right to exclude Burris:
… the fact that the governor has yet to be convicted or even impeached is hardly conclusive when dealing with a Senate decision that a particular election or appointment process has been too tainted by evidence of corruption for any victor in that process to represent the electorate with honor and, equally vital, with the appearance of honor.
It matters not that the criminal standard of proof beyond a reasonable doubt has not yet been met and might never be: The question for the Senate isn’t whether the Illinois governor truly is a crook, but whether reasonable observers would deem the process too crooked to produce a credible result.
The task of deciding whether public trust would be unacceptably compromised by seating any appointee of a governor whose overheard comments had poisoned the public well should not be confused with the task of deciding whether someone is guilty of election fraud or of corruptly conspiring to sell a public office for personal gain. [Emphasis added]
The Tribe standard is all about public perception, and if excluding a black man would make the Senate look bad, would lead “reasonable observers” like Prof. Althouse to compare the Senate to George Wallace standing in the schoolhouse door, would “unacceptably compromise” the Senate’s reputation with many voters, then what Senator would claim the right to do that?
While I agree with the general sentiment, I think the last part is a bit off–I read Tribe’s standard as about the Senate’s perception, not the public’s, and the public trust is not the Senate’s reputation (dubious even at the best of times) but the integrity of the selection process. If the Senate perceives there was or just could have been corruption in the process, then they can refuse to seat the nominee. Burris’s race just lets us see whether the Senate will have the courage of their convictions.
The Constitution is silent on whether the Senate has any authority to seat or not seat Senators, & other than the 17th amendment which expressly redirects state legislative power to legislate rules for executive appointments in case of vacancies.
Where the Constitution doesn’t say something, all other powers are granted to states. I can not therefore see how the Senate itself has any discretion here, other than if it determines that the State of Illinois has not yet lawfully chosen someone, and that appears to be the case since the Sec. of State didn’t complete the process and the Illinois Supreme Court hasn’t ruled on whether the Secretary’s action is ministerial (required) or discretionary.
Of course, this whole episode calls out for legal reform – at both the state and federal levels. I’d start by requiring all appointments to be temporary and an election held at the earliest opportunity (Biden’s replacement gets to ride his whole 6 year term). Another would be to prohibit candidates from simultaneously appearing on more than one federal ballot (Biden, Lieberman in 2000). I can see running while your not up for re-election – but running for two spots is unfair to the electorate.