What happens now for Senate pick?

and John Patterson
Daily Herald staff writers
Published12/30/2008 6:00 PM

Now what?

With two political forces already lining up to say they won't cooperate with Roland Burris' appointment as U.S. Senator, what happens next has the potential to turn into a U.S. Constitutional legal battle, with several experts saying the law is on Burris' side.


Burris faces two hurdles. First, the state of Illinois, through Secretary of State Jesse White, must certify that an appointment has been made, said Joe Shoemaker, spokesman for U.S. Senator Dick Durbin. White said Tuesday he will not certify the appointment.

But White's certification is mostly a ministerial function, noted Dean Harold Krent of the IIT Chicago Kent College of Law.

"Here, it seems like there is no ground not to certify except for his (White's) own discretion that there is a cloud" over Blagojevich, said Krent. "It's probably unlawful" not to certify, he added.

Next, the U.S. Senate must formally receive the appointment, said Shoemaker. The Senate can make a motion to not seat pending an investigation if they believe there are questions of impropriety, he added.

U.S. Senate Majority Leader Harry Reid and roughly half the Senate have said they will not seat anyone appointed by Blagojevich. But a landmark U.S. Supreme Court case in 1969, Powell v. McCormack, said the House and Senate can only go so far in deciding who to exclude.

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Powell v. McCormack "would seem to say that Burris can be seated," said law professor Robert Bennett of Northwestern University School of Law.

Bennett is joined in his opinion by both Krent and UCLA professor of law Eugene Volokh, who was quoted last week in Slate on the topic.

"Unless there's a continuing investigation into (Burris') appointment - his appointment should be seated," said Krent.

But the Senate may thumb its nose at the precedent, and Burris would be forced to sue, perhaps both Jesse White and a Senate official like the sergeant-at-arms, legal experts noted.

Even if senators are legally wrong to exclude Burris, the battle could tie up the appointment for some time. Krent noted an expedited court ruling would be likely, but meanwhile, an even thornier problem could rear its head.

While Burris is suing, Blagojevich could be impeached and his successor, Lt. Gov. Pat Quinn, could try to rescind the prior appointment and replace Burris with a new appointment.


"That's a really wild one," said Krent, who had no predictions on how that would play out legally.

Lastly, even if senators are forced to accept Burris, they also have the power under the Constitution to expel members with a two-thirds vote.

"(But) there's at least some learning that expulsion - is for conduct while you're sitting in your term as senator; not for things that preceded it. And of course Burris hasn't done anything," said Bennett.

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