Professor Kalt writes:

The core of their argument is that the Senate can judge the elections and returns of its members, and so "[i]f 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." . . . Here's why I think that's wrong.

Their analogy would work if, say, Jesse Jackson, Jr. got appointed over the corruptly excluded Valerie Jarrett. But that's not what is happening here. Go back to the election analogy. Let's say that an election was corrupt. The Senate rightly refuses to seat the winner of the election. Now there is a vacancy. Thus, the governor gets to appoint someone to fill it, and if he does so without any shenanigans that time, it should be OK.

The alternative would be to say that once one bad thing happens, the Senate can force the vacancy to persist until there can be a new and clean election. As my colleague Mae Kuykendall points out, though, the new election wouldn't remove the "irremediable taint" of the corrupt vacancy anymore than a new and clean appointment would. What removes the stain of corruption is a non-corrupt appointment pursuant to state law. As warm-feeling a policy as boycotting Blagojevich might be, I don't read Art. I, § 5 and the 17th Amendment as giving the Senate that authority here. It seems to me that those provisions leave it to state law to determine how vacancies are filled.

(Emphasis supplied.) Let's forget for the moment that the professor is assuming facts not in evidence, it seems to me he concedes the argument already. The analogy would work, he writes, if there were actual corruption. Get that? He concedes that the Senate DOES have the power to deny an appointment pursuant to Article 1, Section 5. He just does not think that they can deny the seat IF there is no corruption in the actual appointment of Burris.

But this raises the following questions, under the Professor's construct -- what is "corruption" sufficient to allow the Senate to refuse to seat an appointed Senator? Who decides what level of "corruption" is sufficient? Is there a case that can be cited for this proposition? Or is it just the text of the Constitution that gives us the answer? There are two examples of the Senate refusing to seat appointed Senators:

In 1893 (before the 17th Amendment provided for the direct election of senators), the Montana legislature adjourned without electing a senator. After the adjournment, Gov. John E. Richards appointed Lee Mantle to fill the vacant seat. By a three-vote margin, the Senate determined that a vacancy the legislature knew about and did not fill was not the sort of vacancy that the governor had the power to fill himself. Accordingly, Mantle was denied the seat.

In 1913, just after the 17th Amendment was ratified, Sen. Joseph Johnston of Alabama died. The Alabama legislature was in recess, and the governor appointed Frank Glass to fill the vacancy. The last provision of the 17th Amendment reads, "This amendment shall not be so construed as to affect the election or term of any Senator chosen before it becomes valid as part of the Constitution." If this clause was read as attached to the Senate seat, then the 17th Amendment did not yet apply to it, and Glass was properly chosen under the pre-17th Amendment procedure. If, on the other hand, the amendment applied to the individual senator, then it was operative with regard to the Alabama seat. In that case, the appointment of Glass was unconstitutional, and the seat would have to be filled by special election. The Senate determined that the latter was the correct interpretation. Glass did not get the seat, which was filled instead by a special election.

However, no court has passed on such actions by the Senate. I know of no cases that have determined that question. It seems clear that this situation is different that Powell. To wit, it is a case of first impression. We do not know what a court might decide frankly. In the Slate article, Amir and Chafetz argue:

Powell . . . said that each house could "judge" the qualifications laid out in the Constitution (such as age) but could not make up new qualifications. Thus, if the Senate were to plausibly decide in good faith that a candidate failed to meet the Constitution's age requirement, Powell nowhere suggests that this senatorial determination should be set aside by ordinary federal courts. For similar reasons, federal courts should not interfere when the Senate plausibly and in good faith decides an election or return to be improper or corrupt. The critical point here is that the Constitution itself sets up the Senate as the highest court of Senate elections. When the Senate speaks as this court, its adjudications are legal judgments that no other court may properly reopen. If the Senate convicts a federal judge in an impeachment court, no other federal court may properly interfere. So, too, for Senate elections and returns.

(Emphasis supplied.) This strikes me as a powerful argument. Powell is distinguishable because the House ruled that Adam Clayton Powell did not meet qualifications that went beyond the requirements of Article, Section 3 of the Constitution. The Powell Court ruled that the House could not create qualifications beyond those already provided in the Constitution. In judging the "return" of the Burris appointment, there is no enumerated list of criteria for judging "returns" provided by the Constitution.

Professor Kalt accepts that there clearly are situations where the Senate can choose to not accept a "return" of a Senate election or appointment. Who decides what those are? The Senate or the Court? A textual reading of Article 1, Section 5 tells us it is the Senate:

Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members . . .

In Powell the Court wrote:

Political Question Doctrine

1. Textually Demonstrable Constitutional Commitment.

Respondents maintain that, even if this case is otherwise justiciable, it presents only a political question. It is well established that the federal courts will not adjudicate political questions. See, e.g., Coleman v. Miller, 307 U. S. 433 (1939); Oetjen v. Central Leather Co., 246 U. S. 297 (1918). In Baker v. Carr, supra, we noted that political questions are not justiciable primarily because of the separation of powers within the Federal Government. After reviewing our decisions in this area, we concluded that on the surface of any case held to involve a political question was at least one of the following formulations:

"a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question."

Respondents' first contention is that this case presents a political question because, under Art. I, 5, there has been a "textually demonstrable constitutional commitment" to the House of the "adjudicatory power" to determine Powell's qualifications. Thus, it is argued that the House, and the House alone, has power to determine who is qualified to be a member.

In order to determine whether there has been a textual commitment to a coordinate department of the Government, we must interpret the Constitution. In other words, we must first determine what power the Constitution confers upon the House through Art. I, § 5, before we can determine to what extent, if any, the exercise of that power is subject to judicial review.

Respondents maintain that the House has broad power under § 5, and, they argue, the House may determine which are the qualifications necessary for membership. On the other hand, petitioners allege that the Constitution provides that an elected representative may be denied his seat only if the House finds he does not meet one of the standing qualifications expressly prescribed by the Constitution.

If examination of § 5 disclosed that the Constitution gives the House judicially unreviewable power to set qualifications for membership and to judge whether prospective members meet those qualifications, further review of the House determination might well be barred by the political question doctrine. On the other hand, if the Constitution gives the House power to judge only whether elected members possess the three standing qualifications set forth in the Constitution, further consideration would be necessary to determine whether any of the other formulations of the political question doctrine are "inextricable from the case at bar." Baker v. Carr, supra, at 369 U. S. 217.

. . . In order to determine the scope of any "textual commitment" under Art. I, § 5, we necessarily must determine the meaning of the phrase to "be the Judge of the Qualifications of its own Members." . . . Our examination of the relevant historical materials leads us to the conclusion that petitioners are correct, and that the Constitution leaves the House without authority to exclude any person, duly elected by his constituents, who meets all the requirements for membership expressly prescribed in the Constitution.

Thus, in Powell, the Court determined that the House (and the Senate by extension) were bound by the expressly prescribed qualifications stated in Article 1, Section 3 of the Constitution in judging the qualifications of a Member. However, there is no comparable list of criteria for judging the "returns" of its Members. Professor Kalt would rely on the 17th Amendment, which provides in pertinent part:

When vacancies happen in the representation of any State in the Senate, the executive authority of each 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.

Here is Professor Kalt's problem - if he is correct, then the Senate has no discretion to not seat even a "corruptly" (by his standard) appointed Senator. The language can not be mandatory except when it is not. It either is or it is not.

Of course, a court could decide that it will try and fashion rules of the road for the Senate. But that truly makes such an adjudication problematic. Unlike Powell, where the court could point to specific text of the Constitution that determine the qualifications of its Members, here there is no text in the Constitution on which the Court can hang its hat. Either the 17th Amendment is absolute - and "corruptly" appointed Members must be seated, or there is discretion involved. If discretion is involved, it seems to me that discretion is granted to the House and Senate - by Article 1, Section 5. They are the "judges" of the "returns" of their Members. Not the Courts.

Now this is all good fun, but how much of this will resemble the actual case that may be before a court? In my opinion, not much. For example, Professor Kalt writes:

The alternative is a situation in which the seat remains vacant until the IL legislature either removes Blagojevich or passes a law stripping him of the appointment power and mandating an election. But surely that puts the cart before the horse. The legislature has had the opportunity to do both of those things already, and has declined to do so.

(Emphasis supplied.) Actually, the Illinois legislature is in the process of impeaching Blago. A committee has been named and it is likely Blago will be gone by the end of January.

In addition, the Senate is likely to refer the Burris matter to a committee that will study the matter and report back to the full Senate. To wit, Burris will not be "rejected" immediately. It may take 3 months before that occurs. Can Burris sue to be immediately seated? Can a court order the Senate to do that? WOULD it? The answer to those questions seem no to me.

When will Burris be able to sue? Probably when Blago is removed from office, his replacement is in place and names a different person to fill the Illinois Senate seat, who is then seated by the Senate.

All of a sudden, the case looks quite different than the professorial discussion we have been reading so far. Actual litigations tend to do that. Remember, Adam Clayton Powell did not actually take his seat in the 90th Congress. By the time his case was decided, the 90th Congress was over and Powell was seated in the 91st Congress.

In the end, the issue might only be whether Burris gets a Senatorial salary for two years.

The real world does not often resemble law review articles, especially when politics is involved.

Speaking for me only

UPDATE:

Professor Kalt responds by e-mail:

I just read your blog post with interest, and I had a couple of comments.

First, I think you missed part of my point when you said that I assumed facts not in evidence. I am not saying that I know that Burris was not appointed corruptly, therefore he must be seated. I am saying that the Senate cannot exclude him *without any process whatsoever to determine whether he was appointed corruptly.*

Second, I think that Powell suggests the argument against Amar and Chafetz that there is nothing that the Senate is claiming is wrong with the "returns" in this case--the paperwork is in order, assuming that Burris wins his current court case, and that under Powell, if the problem is not with the paperwork or the qualifications, the Senate's remedy is to expel, not exclude. Thus, I don't concede the point that any level of corruption is sufficient to justify refusing to seat Burris. This follows your statement ("Here is Professor Kalt's problem - if he is correct, then the Senate has no discretion to not seat even a "corruptly" (by his standard) appointed Senator.") to which I would simply answer, "I don't think it's a problem."

Third, you rightly note that Blagojevich could still be removed from office (the Burris appointment probably sped things up, but I think end of January is optimistic). But my point was that they could have done it already and failed. Even if they remove him tomorrow, Burriss still has his piece of paper. If Quinn appoints someone else, the Senate would have to choose which of the two men to seat, and it would be harder for the Senate to be denied the power to rule on the merits. But it wouldn't change the underlying issue--if Burris is entitled to the seat now, he is entitled to it even after something like that.

On your final point, you are right that the Senate has the ability to delay things (a Politico article suggested that is just what they are going to do), and this will saddle Burris with some ripeness arguments. But I think that Burris can expect his case to get through the courts faster than ACP did. And if he gets back pay, that will still settle the issue for next time, which is all I really care about.

That last bit is the only thing that I will concede makes my professorial approach here attackable as "ivory tower." I was stung by your implication that I don't understand things from a litigator's perspective. I think that I was a good enough litigator back in the day (I worked mostly on appellate constitutional litigation, fwiw). I don't think I forgot everything the day I signed up for my teaching job.