First of all, let me apologize in advance for any misapplication of constitutional law that I may make over the next few paragraphs. I am not a constitutional scholar and cannot pretend to be one, however, I am somewhat familiar with the document… at least familiar enough to write a blog entry.
Senate Majority Leader Harry Reid (D-NV) stated that Blagojevich’s pick of Roland Burris “unacceptable” and that Burris would not be seated by the Democratic caucus. While that may be a political deterrent to the State of Illinois to approve the nomination for Burris to be seated, it does not mean that Burris will not be a member of the United States Senate.
The 17th Amendment states “When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.” What this means is that it is up to the state to fill the open seat; it is NOT at the whim or the pleasure of the members of the United States Senate.
Constitutionally, it does not matter what Harry Reid or the other 49 members of the Democratic Caucus want. I researched the Senate Rules for appointment to the body and it does not stipulate that the Senate can deny the right of the state to seat its own chosen representative. The Great Compromise of 1787 was the agreement that allowed the state legislative body (or Governor) to appoint the members of the upper house of the Congress.
I may be wrong (and correct me if I am) but Reid has very little wiggle room here. He can choose not to seat Burris in the Democratic Caucus; that may mean he might be listed as an Independent like Joe Lieberman and Bernie Sanders. With Democrats being close to sixty votes with the possible Al Franken victory in Minnesota, and the fact that that there is currently no African American in the United States Senate, state sovereignty may overrule Senate posturing by the middle of January.
This should be an interesting confrontation between states’ rights and the power vested by the states to the national legislative body… Supreme Court here we come!
Faculty, Department of Political Science, Towson University. Graduate from Liberty University Seminary.