Tuesday, December 9, 2008

Senators should announce they'll refuse any Blagojevich appointee to Obama's seat

It’s unthinkable that Gov. Rod Blagojevich, under indictment for trying to sell President-elect Obama’s Senate seat, among other offenses, would name Obama’s replacement — but he can and he might.

The only way to be absolutely certain that such an appointment will never be made is this: the Senate leadership of both parties should announce that they will recommend against seating any such replacement — no matter who it might be — and as many Senators as are willing to do so should publicly join in their leaders‘ declaration. Then, no one in his or her right mind would accept Blagojevich’s appointment, and Blagojevich would be deprived of the ability to make more mischief. (Keep in mind that he can legally appoint himself!)

Political leaders are already grappling with ways to head off a Blagojevich appointment. Senator Richard C. Durbin has called on the Illinois state legislature to pass a bill stripping the Governor of the appointment power (which he holds under state law, as permitted by the 17th Amendment to the U.S. Constitution) and calling for a special election instead. Senate Majority Leader Harry Reid has said he supports the move. And state legislative leaders are set to convene a special session to take up such a bill as early as next week. The trouble is that after they pass such a bill, Governor Blogojevich would have to sign it into law, and he can take up to 60 days to sign or veto any bill. That’s a long time for this deeply tainted Governor to keep the appointment power and wield it in his own interest.

What’s more, not all Illinois political leaders are happy about a special election. Rep. Bobby Rush, a Chicago African-American, has already said he will fight to block a special election on two grounds: it would limit the prospect of Obama’s place being taken by a minority candidate; and it would take too long, leaving the state without one of its Senate votes as major issues are taken up in Washington. Others besides Rush have expressed the view that, since Obama was the only African-American in the Senate, it would be fitting for the vacancy appointment to go to another Black person. While it’s not clear whether other major political figures, if any, will oppose a special election, Rush’s stand by itself gives Blagojevich a card to play.

An alternative is impeachment by the legislature. But again, this is not a timely solution, since the impeachment process might take even longer than 60 days before Blagojevich could be removed from office.

Constitutionally, the Senate is the sole judge of the qualifications of its own members to hold office and also has the power to expel members. Although rarely used, these powers are widely considered to make it possible for the Senate to refuse to seat a new member. But the Senate would be foolish to wait on the assumption that Blagojevich cannot or will not appoint someone. If he named, say, Rep. Rush or Rep. Jesse Jackson, Jr., some Senators would likely find it very awkward, if not impossible politically, to vote to reject such an appointee, solely because of the taint attached to Blogojevich. By declaring in advance their intention to reject anyone appointed, that potential hurdle would be cleared.

Of course, U.S. Attorney Patrick Fitzgerald might relieve everyone of this burden by persuading Blogojevich to resign, but that’s unlikely to happen soon. The Governor will hold onto his office as long as he possibly can. It’s his most valuable bargaining chip.


  1. I'm afraid you are perpetrating a large misunderstanding, that the U.S. Senate has blanket authority to refuse to seat a new member. That is incorrect, notwithstanding that everyone in Washington appears to think it. The Supreme Court in 1969 ruled 7-1 that Congress "has no power to exclude a member-elect who meets the Constitution's membership requirements." Those specified membership requirements which are simply age, citizenship and state residency. That ruling has never been challenged and there have been no attempts since then to reject a new Senator.

  2. I am aware of the Supreme Court decision in the case of Rep. Adam Clayton Powell, Jr., holding that the House did not act properly in that instance by excluding Powell. But I think that decision was closely tied to the facts of the Powell case, and a markedly different set of facts before an entirely new Court almost 40 years later might well yield a very different result. Certainly, Congress has never conceded that it does not have the power at issue, and of course, someone would have to go to court to test it agian, if Congress exercised it. And in fact, just yesterday, all 50 Democrtas in the Senate signed a letter to Blagojevich in which they said:

    "Please understand that should you decide to ignore the request of the Senate Democratic Caucus and make an appointment we would be forced to exercise our Constitutional authority under Article I, Section 5, to determine whether such a person should be seated."

    Doesn't look as if they are prepared to allow the Powell decision to settle the matter.