There are two other legal concepts looming in this situation. First, there is the case Nixon v US. In that case, the Senate impeached a federal judge who accepted a bribe to dismiss a criminal case. Nixon argued that the Senate failed to comply with the "impeachment trial clause" which provides that the Senate has the sole power to "try" impeachments. Judge Nixon argued that because a Senate committee conducted the fact-finding, evidence collection, hearing of testimony, etc., the "Senate" did not try him as mandated by the constitution.

The Court held that the procedure the Senate uses to conduct the impeachment process presents a "political question," and it refused to reach the merits of Nixon's arguments. Well, sort of. A long part of the ruling seeks to demonstrate that the word "try" implies many different types of procedures and that the Senate process fell within this flexible framework. So the Court seemingly answered the question without answering the question.

What does this have to do with Burris? Souter has an interesting concurrence that raises a hypothetical in which the Senate impeached under circumstances that blatantly violated due process -- such as a "coin toss." Souter suggests that the Court could intervene in that instance.

So, even if the Senate has the authority to "review" the selection/election process, the question then turns to what standards should the Senate use, how deferential should the Court operate in the process, and is there a line that the Senate could cross that warrants judicial invalidation (such as a pre-announced decision that ANY candidate chosen by the governor is unacceptable).

The second issue concerns federalism. Both Article I and the Seventeenth Amendment delegate the election of members of Congress and the filling of vacancies to state governments. The Seventeenth Amendment gives states the option of having a special election or allowing the governor to make the selection to fill a Senate vacancy. Illinois has chosen the latter route.

Democrats refused to strip the governor of the power to make the appointment because they feared that a Republican could win the special election. They also knew they could not rush through an impeachment so they pursued the awful route of seeking a judicial invalidation of Blagojevich's office. When that failed, they now say they will rush through the impeachment process -- even though the prosecutor has asked the panel not to subpoena Obama administration officials, who are presumably "material witnesses" to the governor's defense and the allged "crime." In a move that resembles "Bush's due process," Democrats are leaning towards complying with the prosecutor's request. Cynically, Republicans want the opportunity to embarrass (ooops, question) Obama's staff.

As messy as it is, the state process is playing out. The governor has not been convicted of a crime; the Illinois courts refused to declare him incompetent; the legislature did not strip him of the power to pick Obama's successor; the impeachment process is in an embryonic form; and the prosecutor has asked for three additional months to build a case. Why on Earth should the Senate veto the governor when the constitution gives the state the sole authority to make the selection?

If the Senate intervenes, it will play the role of the Supreme Court in Bush v Gore. The Court appropriated Florida's constitutional and legislative authority over the recounts by enjoining them from taking place -- even under a uniform standard. Here, the Senate has basically said that nothing involving the governor is acceptable; accordingly, it is mandating a special election -- something the constitution does not give the Senate the authority to do.

Thiw is what Burris will be, if the Blago appointment stands.

Did anyone think Would-be Senator Quixote Burris would turn down the opportunity to stay?  After Blago dropped the winning lotto ticket at his feet and told him to pick it up?