The news is filled with cries from the Senate leadership and from the President-Elect to refuse to seat former Illinois Attorney General Roland Burris as the new Senator from Illinois pursuant to the appointment by Governor Rod Blagojevich of Burris to fill the seat vacated by President-Elect Obama. 

This has been great political theater (and comic relief) for weeks since Governor Blagojevich was arrested December 9^th at his official residence by Federal Marshals on corruption charges alleging that the Governor was trying to sell the Obama seat for personal gain.  The Feds allege that the Governor has done everything to profit by this appointment except listing the seat on Ebay.

A storm of protest has demanded the removal of the Governor from office and called for a special election to fill the Senate seat.  But nothing has been done and the Governor announced a surprise appointment of Mr Burris on December 30. 

There are a few problems for the Senate leadership.  First, Mr Burris appears to be a sober and substantial designee for the position.  He is so far appearing to be above any scandal and is a qualified designee for the appointment.  And he is the legally appointed Senator under the authority of Illinois law and the Governor.  Second, Mr Burris is Black - and as such is the only Black Senator in the Senate at the moment.  So for Harry Reid and the leadership to oppose his membership, they must oppose an apparently qualified Black appointee from joining their all-white Senate Country Club.

The Constitution provides in Article I that each house (house and Senate) shall be the judge of the Elections, Returns and Qualifications of its own Members.  That means that the Senate can refuse to seat Burris.  Surely a court challenge would follow and we would have a separation of powers problem in the courts again.  This is a clearly political question and the courts are not going to like being put in the middle of this.

It must be remembered that despite the allegations and the press feeding frenzy, Governor Blagojevich has not been indicted.  He has not been convicted of any crime.  And although some accusations have been given attention in the news media, he is the legally elected Governor of the State of Illinois.  And, according to 10 ILCS 5/25-8 (Illinois Compiled Statutes), he has the legal power to appoint Roland Burris to fill a portion of the vacant term of the junior Senator from Illinois until the next Congressional election (two years).  There is no allegation that Burris has done anything wrong or that there is any improper connection between Burris and the Governor. 

At the moment, Illinois Secretary of State, Jesse White, has refused to issue the appropriate certificate of appointment.  This function of the Secretary of State is, in my view, ministerial and not discretionary and I expect the Illinois Courts will force White's performance of his official duty. (petition for a Writ of Mandamus has been filed) The US Senate leadership will determine their strategy for what happens next.  They may believe that they can investigate the allegations and delay any action until the Governor can be impeached.

Blagojevich gets high marks for causing consternation among his opponents and for controlling the news cycle.  I am surprised to see President- Elect Obama become involved in the controversy - he needs to stay as far away from this one as possible.  Two top Obama people have hired criminal defense attorneys for their possible involvement with the Governor.  There is more to come of this farce. 

Film at Eleven.