Legislative bodies are the judge of the qualifications of their members. Words to that effect are in most state constitutions and in the federal constituion.
But, in the 1960's, the most liberal Supreme Court in American history, the Warren Court, ruled that those words have limited value. The members of a legislative body cannot judge whether a member-elect would likely be a worthy member of the legislative body; members of the legislative body can only judge whether a member-elect meets the age and residency tests of serving.
They made these rulings in the cases of Congressman Adam Clayton Powell, whose record of achievement was almost all behind him, and Georgia State Representative-Elect Julian Bond, whose record of achievement was almost all ahead of him. Powell was a chronic no-show self-indulgent legislator whose inattention to detail led a slander judgement against him to snowball into the crisis that ended his career.
Bond was an anti-war and civil rights protestor who as a state legislator and national public speaker against the Nixon and Reagan Administrations would help frame important national issues. After losing a Congressional primary to John Lewis in 1986, Bond relocated to the Washington, D.C. area, where he taught history and played a useful role as Chairman of the Board of the NAACP, a position he still holds.
The rationales for denying seating to both Powell--a once distinguished leader for civil rights--and Bond were the same: their controversial actions caused public embarrassment to the legislative body of which they sought to be a part. They both were flouters of societal norms and were law breakers at least to some degree, Powell motivated by personal disdain for conventional morality, Bond motivated by passionate desires for equal rights and the ending of the War in Vietnam.
The Powell-Bond rationale is the nub of Harry Reid's original argument against Burris as well: the members of the Senate do not want to be tainted by close association with an appointee of an apparently corrupt Governor, already indicted by a U.S. Attorney in close cooperation with the FBI, who may be removed by impeachment and trial by the Illinois Senate. Further, there is the obvious fact that Burris is not the strongest possible Democratic candidate for re-election in 2010; he might be defeated for election then.
But engaging in that kind of rationale is descending down a very slippery slope. Legislative bodies are not private clubs that can blackball members because of reputation, associations, or any other reason they feel like. Legislative bodies represent the public, and should in Jimmy Carter's words, be "as good and as decent as are the American people." Carter well knew that he was not calling for a standard of perfection.
Legislative bodies are agents of the public, with their members chosen in the manner prescribed by their constitutions. As the ever-eloquent Pennsylvania House Speaker K. Leroy Irvis once joked, Democratic legislators "may be rascals, but they're our rascals."
Whether Roland Burris is a rascal remains to be seen. As a lobbyist, he made inconspicuous contributions to Rod Blagojevich, who had defeated him for the 2002 Democratic gubernatorial nomination. (That race had a major impact on the Philadelphia School District, where my wife teaches and my daughter goes to high school, because runner-up and almost-winner Paul Vallas became it's hard-charging and somewhat revolutionary CEO for five years.) He casually mentioned his interest in the seat to a Blagojevich aide, but did not enter into any discussions with the Governor or make any attempt to marshal support.
If he winds up in the Senate, it will be because he had enough legal knowledge as a longtime attorney and former Attorney General of Illinois to know that Senate nominees have constitutional rights that transcend politics. It will be a lucky break for Burris that the whiff of scandal drove more prominent candidates out, but, as Howard Dean likes to say over and over again, chance favors those who are prepared.
It may be that the U.S. Constitution should be amended to require elections without interim appointments for Senate seats. It may be that Burris will be, or should be, defeated in the Democratic primary or the general election for Senator in 2010. It may be that the Governor of Illinois will be convicted by the Illinois Senate, removed from office, and ultimately jailed.
None of this means that Burris should not be seated. The idea that any legislative body can take offense at the associations of any constitutionally qualified member, or declare that they will reject a constitutionally qualified member so that a better person may be selected instead, severely limits American democracy.
This saga does not show the Democratic majority of the U.S. Senate at its finest. I am encouraged by hints that it is likely to end soon. I am confident that the voters of the state which has given us Abraham Lincoln, three generations of Adlai Stevensons, Paul Simon, and Barack Obama will make an intelligent and informed choice for Senator in 2010.