Another case of "Does the Constitution REALLY mean what it says"? Contemplating the Burris appointment

The appointment of Roland Burris to the U.S. Senate by embattled Illinois Governor Rod Blagojevich has predictably stirred up debates among the media and legal community over whether the Senate has constitutional power to refuse to seat Burris. On the side of those who say that the Senate is empowered to refuse Burris' appointment is Article 1 Section 5 of the Constitution:

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

On the side of those who say the Senate does not have the power to refuse to seat the ex-Illinois attorney-general is the Supreme Court decision in Powell v. McCormack that said the House's power to judge Qualifications was limited to constitutional qualifications.

Be that as it may, it is not constitutional qualifications that are being questioned in the current case. It is the process of the appointment that is under investigation. It would seem to me that the Powell precedent does not apply. Along this line of reasoning, two constitutional thinkers at Balkinization speculate:

Can The Senate Refuse to Seat Roland Burris? Quite Possibly by Jack Balkin

The Burris appointment -- another view by Mark Tushnet