At the founding, Senators were elected by state legislatures. If the Senate believed that legislators in a given state had been bribed into voting for a particular candidate, the Senate could refuse to seat him.Amar and Chafetz need to deal with Powell v. McCormack, in which the Supreme Court said that the House did not have the power under Article I, Section 5 to refuse to seat Adam Clayton Powell. That case focuses on judging "qualifications," and the Court said that only relates to the qualifications specified in the Constitution — age, citizenship, and residency. Beyond those 3 qualifications, the people had the power to choose the representative they wanted. But Powell was clearly the people's choice, so what do you do with Powell when the governor appoints the new member? For an accurate analogy for the Burris appointment, imagine if the problem with Powell hadn't been that the members of Congress thought he was corrupt, but that they thought there had been a fraud in the election.
Because of the word "returns" in Section 5, what is true of elected Senators is equally true of appointed Senators. According to the Oxford English Dictionary, a "Return" in the time of the framers involved a report of an appointment made by a sheriff or other official. If the Senate may refuse to seat a person picked in a corrupt election, it likewise may refuse to seat a person picked in a corrupt appointment process.
Now, the Powell case was about whether Powell could use the courts to override the decision to exclude him. The argument on the other side was that the House had the final call about the scope of the power to judge the qualifications of their own members. In that view, which the Court rejected, a vote to exclude already embodied the constitutional interpretation that they had the power. Our current discussion of the question of the scope of the power to exclude Burris will affect how the Senators think about the scope of their power, and articles like Amar and Chafetz's should embolden the Senators, and they may vote to exclude him. If that happens, Burris may sue in federal court, and then the court will have to decide whether the Senators' assessment of their own power is the final answer about the meaning of the Constitution.
But doubts about the scope of the Senate's power to look into the circumstances of the appointment may give the Senators pause. The vote to exclude Burris may fail — because of these constitutional doubts and for other reasons. If that happens, Burris will be seated and there will be no occasion for a court to discuss the scope of the exclusion power.
To be sure, there are plenty of other reasons to seat Burris. For one thing, if we rely on the theory that the Senators have the power to exclude him because the appointment process was corrupt, they will need to go through some sort of factfinding process. Blagojevich faces his criminal trial, but he is the duly elected governor of Illinois, with the power to appoint the Senator. What sort of parallel process in the Senate will be needed to make the exclusion legitimate?
In this context, the Senate itself is a judge, in the words of the Constitution, and can decide facts for itself. It need not follow the rules of criminal courts. That means it need not find Blagojevich guilty beyond reasonable doubt, as a court would if his liberty were in jeopardy. It is enough for the Senate to reject Blagojevich's appointee if a majority of senators are firmly convinced that Blagojevich is corrupt and that any nomination he might make is inherently tainted by such corruption.If the Senators exclude Burris because they simply feel quite certain the appointment is tainted and not because they've gone through some impressive and fair factfinding, when — if — Burris goes to court to override their decision, Burris's argument about the scope of the power to exclude will look much more appealing. The Senate will need to argue that the court should defer, but the court will think less of this notion of deference if the process to be deferred to is not very impressive. Amar and Chafetz recognize this reality of litigation:
To make sure its ruling sticks, the Senate should follow its own procedures with due deliberation. Burris' case can be referred to a committee for careful review. He need not be seated while this committee does its work, and it will be very hard for Burris to persuade any federal judge to interfere in the meantime, especially if Senate Democrats and Republicans unite. With any luck, Blagojevich will be out of office soon enough and a new appointments process (or a special election) can begin that would supersede the attempted Burris appointment.The delay itself is effective, but it does mire the Senate in an investigation of the Democratic governor. The argument will be made that the effort to exclude is more of a power grab than the governor's attempt to fulfill what is, after all, a duty of his office. Should the Senate Democrats want that? What a nasty preoccupation for Congress at what should be the fresh beginning of a new administration!
Amar and Chafetz make a good argument about the power to exclude but in doing so, they expose the political disaster it would be to vote to exclude.
ADDED: Lawprof Sandy Levinson puts it well:
I don't see how one can mount a good-faith argument against seating Burris unless one is willing to open each and every gubernatorial appointment to some kind of "good-government" scrutiny....
Should the motives of Gov. Patterson [sic] be subjected to relentless scrutiny if he bows to pressure to name Caroline Kennedy as a tribute to a dying senator and, in addition, to get access to the Bloomberg and Kennedy donor list that presumably comes with that appointment?