. . . The fact that [Burris] is indisputably "qualified" in the constitutional sense has no bearing on the authority of the Senate under Article I, Section 5 to serve as the sole "Judge of the Elections"--and, by extension, the temporary appointments--of would-be members.
And the fact that the governor has yet to be convicted or even impeached is hardly conclusive when dealing with a Senate decision that a particular election or appointment process has been too tainted by evidence of corruption for any victor in that process to represent the electorate with honor and, equally vital, with the appearance of honor.
It matters not that the criminal standard of proof beyond a reasonable doubt has not yet been met and might never be: The question for the Senate isn't whether the Illinois governor truly is a crook, but whether reasonable observers would deem the process too crooked to produce a credible result. The task of deciding whether public trust would be unacceptably compromised by seating any appointee of a governor whose overheard comments had poisoned the public well should not be confused with the task of deciding whether someone is guilty of election fraud or of corruptly conspiring to sell a public office for personal gain.
. . . . [T]hat the Senate's early December decision to exclude any Blagojevich appointee reflected nothing about the particular person he appointed cuts for, not against, leaving the matter to the judicially unreviewable judgment of the Senate itself. For the danger of invoking doubts about the process of election or appointment, as a pretext for excluding someone that a Senate majority finds objectionable, is minimized when the decision to exclude is made in advance of any individual's appointment, and thus under the classical philosopher's veil of ignorance about whose ox might be gored.
Maybe now people can stop accusing Harry Reid of "ignoring the rule of law."
Speaking for me only
