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Sunday, January 4, 2009

Can Senate Republicans Refuse To Seat Any New Democratic Senators?

Democratic Senate Majority Leader Harry Reid stated today that the Senate can do "whatever we want" with regard to seating Roland Burris, the appointee of Illinois Gov. Rod Blagojevich. Reid may want to rethink that position.

Reid apparently is picking up on an argument advanced by Harvard Law School Professor (and potential Supreme Court nominee) Lawrence Tribe that the Senate is the sole judge, without any judicial review, of whether to seat a Senator. Many other law professors disagree with this assessment that the non-reviewable power of the Senate relates to anything other than the constitutional qualifications of a Senator. There is no question that the Burris appointment was in accordance with law and that Burris is constitutionally qualified.

One result of the Reid-Tribe "we can do whatever we want" doctrine would be that the Senate majority could exclude minority party candidates, candidates of a particular race, or people they simply don't like. But there is another interesting possibility that would foist Reid on his own petard.

If Senate Democrats can do whatever they want, does that mean that Senate Republicans also can do whatever they like? Could Republican Senators filibuster the seating of ANY of the newly elected and appointed Democratic Senators? Republicans have threatened to use the filibuster to keep Al Franken out of the Senate but only until the Minnesota courts decide the outcome of the Minnesota Senate election. In this sense, Republicans have threatened to use the filibuster only to uphold the Constitution, not to challenge Franken merely because they don't like him.

If Senator Reid is going to be consistent in his logic (not that he got where he is through consistency), then Senator Reid should acknowledge that elections and appointments at best are advisory. Senate Republicans therefore could nullify the recent electoral gains made by Democrats through the use of the filibuster.

This possibility shows the absurdity of the Reid-Tribe "we can do whatever we want" doctrine. Or does it? Maybe we are onto something here.

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