Reply #11: "the Senate may well be in a position to look behind a Blagojevich appointment " [View All]

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Analysis: Must Senate seat Burris?

Wednesday, December 31st, 2008 8:25 pm | Lyle Denniston

NOTE TO READERS: This post is another in a series exploring the meaning and scope of prior Supreme Court rulings — here, the June 16, 1969, decision in Powell v. McCormack (395 U.S. 486).

Analysis

Twice in recent days, the Democrats in the U.S. Senate have said, with unqualified confidence, that they have the power to refuse to accept “anyone appointed by (Illinois) Gov. (Rod) Blagojevich” to take the Senate seat vacated by President-elect Barack Obama. The claim has been widely discussed, with many observers saying, with complete confidence, that the Senate has no such power. That conclusion appears to rest mainly on one precedent: the Supreme Court’s decision in Powell v. McCormack in 1969.

The Senate’s Democratic leaders have yet to spell out all of the reasons why they disagree, including the full dimensions of the power they claim to bar a Blagojevich nominee — aside from an unexplained reference to “our Constitutional authority under Article I, Section 5.”

But one thing is already very clear: the Senate’s Democratic leadership is drawing a sharp distinction between its power to judge the qualifications of any Senate nominee, and its power to judge the validity of the process by which that nominee was selected. The Supreme Court decision in the Powell case bears directly on the former, but maybe not — or, at least, not so directly — on the latter.

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On the Senate’s authority to judge the mode of selection of new members, the courts have been quite deferential. There is no indication that the courts, if drawn into the issue, would evaluate congressional action regarding the mode of selection any differently in the case of an appointed member than for an elected member.

The Supreme Court, in the Powell decision, did not question the authority of a house of Congress under Article I, Section 5, except as to qualifications of the member-elect personally. It mentioned in passing a few cases — notably, during the Civil War — when individuals with constitutional qualifications were excluded after being elected, but it did not do so to challenge the general power to judge the validity of election results otherwise. The first exclusions in history of a member-elect, in fact, were based on the two individuals’ “aid and comfort to the Confederacy.” But that was about their personal loyalty, not about the mode of election — the same distinction that was present in the Powell case.

A Congressional Research Service study in 2007 of the status of members charged with or convicted of crime (found here) generally focuses on the authority of a house of Congress to act on members’ qualifications, not their mode of selection — again, the situation in Powell’s case.

A house of Congress’s authority to judge an election (and, perhaps, an appointment) would appear to take precedence over any state method of selection, under the Supremacy Clause and the specific grant of authority under Article I, Section 5.

Thus, the Senate may well be in a position to look behind a Blagojevich appointment and apply a federal Senate standard of propriety regarding the appointing authority (the governor) — so long as it did not add a new “qualification” as such for the individual chosen.

“Taint,” in that sense, may well be a federal question, and a “political question,” at that, and that could put the issue beyond the scope of judicial review — again, so long as the Senate were careful to make clear that the “taint” attached to the process, not to the appointee.

Of course, attorneys for Blagojevich, and for Roland Burris, no doubt would argue that the process and the appointee could not be separated so neatly, and that any reliance upon a perceived “taint” would necessarily attach to the appointee and be, therefore, a new “qualification” that would run afoul of the Powell precedent.