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Senate standoff: Can Dems block Blagojevich's choice?

WASHINGTON — Despite legal questions and delicate racial considerations, Senate Democrats vowed Tuesday to refuse to seat anyone that embattled Illinois Gov. Rod Blagojevich appoints to the Senate, even as Blagojevich upped the ante by naming a veteran black politician to fill the seat vacated by President-elect Barack Obama.

If Roland Burris' smiling acceptance of Blagojevich's offer at a nationally televised news conference seemed unlikely in the midst of a corruption probe and impeachment effort against the governor for allegedly trying to sell the Senate seat, there were more unexpected turns.

Illinois Secretary of State Jesse White indicated that he wouldn't certify a Blagojevich appointment.

Rep. Bobby Rush, D-Ill., a former civil rights activist whom Obama once challenged unsuccessfully for his seat in the House of Representatives, showed up at Blagojevich's news conference to support Burris and argue that senators should give important consideration to his race.

Meanwhile, there's some question whether senators have the authority to block Burris' appointment if it comes to them. Senate Democrats think they have the authority — and the votes — but legal scholars say that's uncertain and the issue could end up in federal court.

Although the Senate refused to seat Mississippi Sen. Theodore Bilbo in 1947, a compromise delayed a decision on whether he'd ever be admitted, and his death months later left the legal question unresolved. Associate Senate Historian Donald Ritchie said there was no Senate precedent for a situation such as this.

Burris, 71, a consultant and former Illinois attorney general and comptroller who'd unsuccessfully challenged Blagojevich for governor but later became an ally, was the first African-American elected to statewide office in Illinois.

Obama's departure leaves no blacks in the Senate, Rush noted, and he said that senators shouldn't block a well-qualified black appointee.

"I don't think they want to go on record doing that," he said, adding that he and others would "persuade," "challenge" or "beg" colleagues to reconsider.

Senate Majority Leader Harry Reid, D-Nev., and the rest of his leadership team issued a statement saying that while they respected Burris' years of public service, "This is not about Mr. Burris; it is about the integrity of a governor accused of attempting to sell this United States Senate seat."

Any Blagojevich appointee "would serve under a shadow and be plagued by questions of impropriety. It is unfair to Mr. Burris, it is unfair to the people of Illinois and it will ultimately not stand."

Blagojevich argued the opposite:

"I'm absolutely confident and certain that the United States Senate is going to seat a man of Roland Burris' unquestioned integrity, extensive experience and his long history of public service. This is about Roland Burris as a United States senator, not about the governor who makes the appointment."

Blagojevich said that with no alternate path available to fill the post such as a special election, for him not to fill it would deprive Illinois residents of their fair share of representation.

Burris defended Blagojevich, saying that "As a former attorney general of this state, I know — and I think most of you all know — that in this legal process you are innocent until you're proven guilty."

Obama said in a prepared statement that he agreed with the Senate Democrats' stance. He called Burris "a good man and a fine public servant," but said, "I believe the best resolution would be for the governor to resign his office and allow a lawful and appropriate process of succession to take place. While Governor Blagojevich is entitled to his day in court, the people of Illinois are entitled to a functioning government and major decisions free of taint and controversy."

Sen. John Cornyn, R-Texas, the incoming chairman of the National Republican Senatorial Committee, said that Senate Democrats shared blame for the mess. After all, he argued, they'd opposed Illinois holding a special election to fill the seat, hoping that Blagojevich would leave office and his successor would guarantee that the Senate seat went to a Democrat.

Bruce Ackerman, a constitutional law expert at Yale Law School, said that if the matter went to court, judges would consider Powell v. McCormack, a 1969 Supreme Court ruling that found that the House of Representatives didn't have the authority to exclude elected Rep. Adam Clayton Powell because of corruption allegations. The House refused to seat him in 1967 and later voted 307-116 to expel him. The court said that the Constitution required the House to admit Powell and then it could expel him by a two-thirds vote.

"The Senate could not exclude a person because the governor is simply under suspicion of things of this kind; that's my view at least," Ackerman said. "If there is evidence of corruption in the appointment, the Senate can refuse to seat people on that ground. But the fact of the matter is the governor of Illinois is acting under his lawful authority as the governor of Illinois. . . . It's quite a different thing to say that the lawful governor of a state cannot make an appointment because they don't like what they've heard about him."

Jim Manley, a spokesman for Senate Majority Leader Reid, said that Senate Democrats didn't think that Powell v. McCormack applied because they weren't judging the appointee but "whether appointment itself is tainted by fraud," which was within their power to exclude with a majority vote under Article 1, Section 5, of the Constitution. "This is like judging the integrity of an election, free from fraud or corruption. It's the process that led to the (appointment), not the appointee's fitness."

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