If the late great Gilda Radner were still with us, surely she would have a field day with the willingness of former Illinois AG Roland Burris to accept Gov. Blagojevich's nomination to serve as interim Senator. Picture Radner as Emily Litella (if you're too young, look it up on hulu or youtube):
Emily: What's all this I hear about the new Senator from Illinois shooting himself in the leg? If you ask me, taking an appointment from that Bigboyovich fellow may be shooting himself in the foot, but not the leg!
Chevy Chase or Jane Curtin: That's Plaxico Burress, not Roland Burris.
Emily: Oh, that's very different. Never mind.
Okay, maybe you had to be there, and by there, I mean watching television during the Ford Administration. Anyway, conventional wisdom will soon coalesce around the proposition that Roland Burris is doing himself a disservice by accepting the Senate appointment, but, as numerous news stories have already pointed out, Powell v. McCormack severely constrains the ability of the Senate to refuse to seat Burris. Like Adam Clayton Powell, Burris has the requisite qualifications for office.
Perhaps the Senate could conclude that, in light of his misdeeds, Blagojevich is not really the Governor of Illinois, and thus lacks the power to appoint a Senator, but this seems far-fetched in the extreme. Meanwhile, if the Senate refuses to seat Burris on this or some equally loopy theory, he should be able to get an injunction on the strength of Powell pretty quickly.
So here's my Machiavellian take: 1) Dems in Congress understandably want to distance themselves from Blago as much as possible, even to the point of not seating an additional Dem who would vote with them and who is, it appears, not personally tainted by Blago's corruption; 2) said Dems, plus President-elect Obama, are also good enough lawyers to know that their move will almost certainly fail if challenged in court, so taking this stand is likely to be cost-free.
Meanwhile, and completely unrelatedly, for my thoughts on the possible long-term constitutional implications of a new era of activist government, see my latest FindLaw column.
Happy new year to all. I'll return to regular blogging next week.
Posted by Mike Dorf