Can the Senate reject Burris?

CAN THE SENATE REJECT BURRIS?…. We know that Rod Blagojevich, corruption allegations notwithstanding, has the legal authority to fill the state’s vacant U.S. Senate seat. Whether the Senate has the legal authority to reject his choice is far less clear.

The fact that no one seems sure makes a court fight a virtual certainty, but it’s a fascinating question to ponder — can the Senate reject a fully qualified appointee based on concerns over the appointor? The Senate leadership clearly believes it can.

The senators pointed to a provision in the Constitution that states: “Each House shall be the judge of the elections, returns and qualifications of its own members.” […]

The Supreme Court has said the Senate and House cannot refuse to seat new members who meet all qualifications for office. In 1969, it rebuked the House for refusing to seat Rep. Adam Clayton Powell Jr., a Democrat from New York who was reelected despite being accused of ethical lapses.

The constitutional standard for House and Senate “is identical,” the court said, but it did not consider whether an appointed senator has different standing than one who is elected.

Of course, in Powell’s case, there were allegations against him personally, while Burris hasn’t been accused of any wrongdoing. With Powell, the court ruled that if Congress didn’t want him to serve, lawmakers had to accept his election and then hold an expulsion vote, which they did. But it would be far trickier to follow a similar course with Burris — letting him take the oath of office and then expelling him on the basis of Blagojevich’s conduct would be, for lack of a better word, problematic.

There’s no shortage of opinions, but I’ve noticed more than a few credible experts who believe the Senate cannot legally reject Burris. Bruce Ackerman, a constitutional law expert at Yale Law School, said, “[T]he fact of the matter is the governor of Illinois is acting under his lawful authority as the governor of Illinois…. It’s quite a different thing to say that the lawful governor of a state cannot make an appointment because they don’t like what they’ve heard about him.”

Sam Stein spoke to another legal scholar who concluded that the Senate doesn’t have a choice here: “Burris has met all of those qualifications: he’s over 30, been a US citizen for 9 years, he’s an Illinois resident; he was appointed by the executive authority of the state to fill a vacancy, pursuant to Illinois law.”

The AP did some research and came to the exact opposite conclusion, insisting that the Senate “has final say over whether a governor’s pick should be allowed to serve in the Senate.”

There is a possible way out that might sidestep a legal mess. The WaPo noted that the appointment could be referred to the Senate Rules Committee for an investigation. While that was ongoing, state lawmakers could impeach Blagojevich. Robert Walker, the former chief counsel of the Senate ethics committee, said, “The Senate, basically as a practical matter, is going to do what it wants to do.”

We’ll see.

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Steve Benen

Steve Benen is a producer at MSNBC's The Rachel Maddow Show. He was the principal contributor to the Washington Monthly's Political Animal blog from August 2008 until January 2012.