Senate appointment

There's some flap over the appointment of Burris to replace Obama in the US Senate. The Democrats aren't going to seat a senator appointed by Governor Blagojevich. The Illinois Supreme Court has ruled that the appointment is legal even without the Illinois Sect'y of State's approval. But that doesn't matter. You see, there's these little clauses in the United States Constitution regarding the Senate. Article I, Section 5 begins paragraph 1 with:

"Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members,"

and and then in paragraph 2 says:

"Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behavior, and, with the Concurrence of two-thirds, expel a Member.".

So, it's not the Illinois Supreme Court, or even the US Supreme Court, that gets to decide whether a Senatorial appointee meets the qualifications. The Constitution gives that authority to the Senate itself. And if their rules require the approval of the state's Secretary of State before allowing an appointee to take his seat, only the Senate has the authority to make and change those rules. And articles of impeachment have been voted in against Blagojevich. The trial hasn't happened yet, but the articles have been entered. That means it's very much a question of whether Burris meets the qualification of having been appointed by the executive authority of the state of Illinois. So, in the hands of the Senate again to decide.

One wonders now whether all those neo-cons who were ranting about "activist judges" will be demanding that the courts follow the Constitution here, or will they be demanding that the courts read in the requirement that the Senate defer to someone else as to the qualifications of an appointee.