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Burris Decision Could Lead to Unprecedented Use of Senate Power to Refuse Appointment

Illinois Gov. Rod Blagojevich's appointment of former state Attorney General Roland Burris to fill President-elect Barack Obama's vacant U.S. Senate seat has created a national crisis, say competing interests who nonetheless agree that the Senate needs to be whole when it convenes next week.

But an appointment by Blagojevich will be too tainted to join the chamber, say Senate Democratic leaders, who have repeated their pledge to block any appointment by the current governor from entering the Senate.

Article I Section 5 of the U.S. Constitution 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."

That means the Senate can vote not to seat former Illinois Attorney General Roland Burris, argues Senate Majority Leader Harry Reid

Asked to explain how the Senate could expel an appointed senator who qualifies to sit in the chamber, Reid's office issued a statement Tuesday saying the judgment will be based on whether Blagojevich is qualified, not Burris. 

"We are not making a judgment about qualifications of (the) appointee, but about whether (the) appointment itself is tainted by fraud. ... This is like judging the integrity of an election, free from fraud or corruption. It's the process that led to the appointment, not the appointee's fitness," Reid's office said in the statement.

But Peter Johnson Jr., a FOX News legal analyst, said Wednesday the law favors Blagojevich and Burris.

"The Supreme Court has made it clear with regard to congressman ... The Constitution allows them to make a decision, but the decision is based on the parameters upon the  constitution ... Are you the right age? Are you a citizen? That's it. It's not a discretionary thing, are you qualified? Do we like the guy that appointed you?" Johnson said.

"The Senate has the right to expel on a two-thirds vote. They don't have a discretionary right if he meets the constitutional requirements. This is a constitutional crisis," he said.

The "crisis" follows accusations by the U.S. attorney in Chicago that Blagojevich tried to sell Obama's seat in exchange for personal compensation. Blagojevich, who could face indictment within weeks and also could be impeached by the state House, announced he was fulfilling his duty as governor on Tuesday by appointing Burris to fill Obama's seat.

"The people of Illinois are entitled to have two United States senators represent them in Washington, D.C. As governor, I am required to make this appointment.  If I don't make this appointment, then the people of Illinois will be deprived of their appropriate voice and vote in the United States Senate," Blagojevich said in a surprise press conference at the James R. Thompson Center in Chicago.

Burris, following Blagojevich to the podium, said Illinois can not be "short-handed" in Congress.

"As the greatest nation in the history of the world, the United States is confronted with a crisis of faith in our own leadership capability and in our ability to bring understanding to nations who look to us for peace and prosperity," Burris said. "And the people of our great nation have told us, in no uncertain terms, that we are at a crossroads of confidence in our ability to return the ideals that make the United States the greatest nation in the world.

"To fight a choking recession and return our economy to a level of vitality and strength, we need leadership in Washington," he said. 

But Reid, in a statement released from his office, said no way, no how. 

"This is not about Mr. Burris. It is about the integrity of a governor accused of attempting to sell this United States Senate," he said.

It also noted that three weeks ago the entire Senate Democratic caucus urged Blagojevich to avoid taking "the imprudent step of appointing someone to the United States Senate who would serve under a shadow and be plagued by questions of impropriety."

Reid's statement comes as no surprise. The entire Democratic caucus signed a letter to the governor three weeks ago saying that "under no circumstance" should he appoint a replacement.

Obama also sided with Senate Democrats who vowed to turn Burris away should he show up in Washington to be sworn in.

"They cannot accept an appointment made by a governor who is accused of selling this very Senate seat," Obama said in a statement. "I agree with their decision, and it is extremely disappointing that Governor Blagojevich has chosen to ignore it."

Some Senate sources say an expulsion would be unprecedented in a case like this.

Denying Burris a seat will be difficult for Reid and fellow Democrats, as he would be the only black senator. It's also a tough spot for the Illinois delegation. Burris is a well-known and well-liked politician and Obama backed Burris in his losing gubernatorial primary challenge against Blagojevich.

But the taint of the appointment could harm the Democratic caucus, which will have 59 members if Al Franken wins the recount in Minnesota.

Republicans have no interest in seating Burris, especially when they've been pushing the state Legislature to pass a law allowing for a special election for the seat, which they say they could win.

"Responsibility for this latest constitutional crisis facing the state of Illinois lies at the feet of national and state Democrats, and particularly Sen. Reid, who was the first national Democratic leader to oppose a special election," Sen. John Cornyn, the incoming chairman of the National Republican Senatorial Committee, said in a written statement.

"The Senate should refuse to seat Mr. Burris and then Sen. Reid, Sen. Durbin and all Senate Democrats should join Republicans in supporting a special election to fill this seat. There is no other appropriate way for this process to move forward without the stench of corruption or political gamesmanship attached to it," Cornyn continued.