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Legality Of Blagojevich Appointment Examined

MELISSA BLOCK: Well, as we just heard, the Senate could block Roland Burris from his seat. We wanted to better understand how the Senate would do that. So, we called Charles Tiefer. He's former legal council to both the U.S. House and Senate. And now a professor at the University of Baltimore Law School. I asked Professor Tiefer what he imagines will happen when the new Senate is sworn in next Tuesday?

Professor CHARLES TIEFER (Law, University of Baltimore): He will present his credentials. That's what he does on the first day of the new Congress. And they will make a motion on the floor of the Senate to act in one of several ways that keep those credentials from working. They'll stop him at the door and say, you're not gonna become a senator.

BLOCK: What kind of vote would it take to to deny him the seat?

Professor TIEFER: It would be a majority vote of the Senate to either totally refuse him or to start a process for deciding it.

BLOCK: And what might that process be?

Professor TIEFER: This is an appointment of a senator. Most of the time, a new senator comes by election. The Senate treats elections and appointments the same. And many many times in Senate history, they have handled, disputed, or contested elections or appointments, often by referring this to a committee and saying you six senators, you sort it out. You figure out whether this person is coming here validly or not to be a senator.

BLOCK: We're talking here about, you know, legal wrangling. But of course, there's also the appearance of all of this. I mean Roland Burris is African-American. He would be the only African-American in the U.S. Senate.

Profesoor TIEFER: That's a serious consideration. That's probably why the senators would be hesitant to just vote to lock the door in his face and would instead say, this is a serious question. This should be referred to a committee. This should be studied. They don't want the appearance to be that they are disrespecting an African-American who was appointed by a sitting governor.

BLOCK: What is the history of the U.S. Senate refusing to seat members?

Professor TIEFER: Well, it has usually done this when there was a contested election, a charge that the votes were so close, that the wrong candidate was sent by the state. In the House, there's a very colorful history which has led to a Supreme Court case. There was a Congressman Adam Clayton Powell, who was kept out from sitting in because they thought he was too corrupt to to be allowed in.

BLOCK: In this case though, I mean, this is this a horse of a different color. I mean, this has nothing to do with Roland Burris' own qualifications, his own ethics. It has everything to do with the man who appointed him. It does seem that there's no exact precedent for what we're talking about here.

Professor TIEFER: Oh, there's new ground being made here. There's no question about it. It can be argued that it's a sitting governor, and he can choose who he wants. That no one has yet removed him from the governorship. And so therefore, no one's even making an argument that Burris himself is unfitted for office. It's only a question of whether that governor has the power to make the appointment that the Constitution says a governor can make.

BLOCK: Well, what do you think when you look at this case, Professor Tiefer, do you think that the Senate has the right, has the authority, to keep Roland Burris from joining its next class?

Professor TIEFER: I do think that they can convene a committee and study the legality of it, and that it is within their precedence not to seat him while they are studying it. That seems to fit the precedence. For them to summarily slam the door in his face, and refusing even to study it, that would be a bit high handed.

BLOCK: Is that scenario basically to run out the clock and hope that something happens on the state level?

Professor TIEFER: That is the way they have handled contested appointments, contested elections where they had no interest whatsoever in running out the clock. That's the Senate way. That's the way they do it. They don't wanna make snap judgments. They wanna think about it for a while and study it. And that's the respectful way for them to proceed.

BLOCK: Professor Tiefer, thanks very much for talking with us.

Professor TIEFER: My pleasure.

BLOCK: Charles Tiefer as a former legal counsel to the U.S. Senate and House. He's now a Professor at the University of Baltimore Law School. Transcript provided by NPR, Copyright NPR.

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