Burris v. The Senate: Folding a Winning Hand

Some events reveal character.  So it is with the Senate Democratic leadership’s response to the appointment of Roland Burris to the Senate by politically radioactive Gov. Rod Blagojevich of Illinois.  The character that has been revealed, alas, is weak and stupid.


ACAXNWRZ3CARZN3IECAGXRT7KCA5X0PPBCAN9K3BNCALL6EBMCAP1Y5GNCA0JAJXFCAA30G7TCABMLPIHCARIAFHBCAABRW5NCAN4DZ03CARLC064CA7WB7EICATOW834CAG84WZACAYW4OETCAKQ86P4.jpgUnder investigation for attempting to sell the very same Senate seat and other peccadilloes, the crafty Blagojevich (see photo, right) had some fun with his fellow Democrats.  Amid calls for his impeachment, resignation, and general pillorying, the governor with the amazing hair named Burris (see photo on left)– an apparently inoffensive former state Attorney General who would be the only Afircan-American senator, replacing the only African-American senator (that fellow Obama).

The Democratic leadership of the Senate, led by Harry Reid of Nevada, recoiled in horror.  Blagojevich was sullying the pristine halls of the Capitol.  His type, and his nominee, would not be welcome there.  Period.  This was a matter of principle and Burris was “tainted.”

The leadership position sounded good for a couple of news cycles.  Like the Senate had integrity.  Like there were things that were beneath the Senate, and Rod Blagojevich was one of them..

Was it a rush to judgment?  Maybe.  Still, there was something compelling about a public official standing on principle, like Ronald Reagan firing the air traffic controllers.  Not necessarily smart, but expressing a basic principle, which commands respect.

But then the Senate Democrats started to weaken.  Burris didn’t seem like a bad guy.  It would be nice to have another Democratic vote.  And he is, after all, African-American, and it’s awkward to shut him out of the Capitol building.  So now, we learn, Burris will get his seat.

This is where the head-shaking begins.  The Democrats’ initial position could be defended.  it had a basic integrity.  Moreover, both the Constitution and history provided support for it.

Article I, Section 5 of the Constitution grants each house of Congress the power to judge the “elections, returns and qualifications of its own members.” Burris is over 30 years of age, an American citizen, and a resident of Illinois, so he has the constitutional “qualifications” required to be a senator.

But the Senate also has the power to judge his “election” and “retun” to office.   If the Senate deems Blagojevich too compromised an official to appoint a member of the Senate, it has the full power to refuse to seat Burris.

That’s what Congress did in December 1865, when it turned away 80 senators and congressmen who had been chosen by reconstituted Southern state governments that Republicans in Congress did not recognize as legitimate.  Though ostensibly new state governments, they were largely controlled by the men who ran them during the Civil War.  The nascent senators and congressmen included ten Confederate generals and five officers of lower rank, seven members of the Confederate Congress, and three men who served in conventions that voted to secede in 1861. Former Confederate Vice President Alexander H. Stephens, designated a senator from Georgia, was under indictment for treason.

If these men could serve in Congress, Republicans sputtered, the war was fought in vain. Thaddeus Stevens of Lancaster, Pennsylvania, leader of the House Republicans, proposed to use Congress’ power under Article I, Section 5 to solve the problem.

On December 4, the House clerk opened the new session by calling the roll of congressmen. He skipped over every congressman from the eleven seceded states. When a Tennessee representative objected, the clerk ignored him.

After the roll call was finished, the Tennessean again rose to speak. The clerk replied that he could not recognize anyone who had not been named during the roll call. Congressman Stevens proposed other business, but the Southerner begged once more to be recognized. “I cannot yield [the floor],” Stevens replied, “to any gentleman who does not belong to this body.”

And that was that. No reason was given for the exclusions. Under the Constitution, none was needed.

A few days later, the Senate followed a comparable course with, characteristically, somewhat lengthier discussion.

Over the next several years, Congress accepted senators and congressmen from the eleven former Confederate states as it became satisfied that each state government had been “reconstructed”after its secession from the Union.

Having excluded eighty senators and congressmen in 1865, the Senate surely has the authority to keep Roland Burris out in 2009.  It need not fear a recourse to the courts.  The issue is plainly a ‘political question’ confided to the Seate to decide.

But the Senate lacks to the will to play this hand out.  By folding a winning hand, by starting down the road to principle and then turning back, it earns the contempt of us all.  A lousy way to start the new session.


  1. Nate Levin on January 15, 2009 at 2:12 pm

    Or does the seating of Burris perhaps show the hand of “No Drama” Obama, who may wish to minimize the number of sideshows and distractions during his first 100 days?

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