Breaking the Law to Spite a (Possible) Lawbreaker

Jacob Sullum | December 31, 2008

Since Rod Blagojevich's indictment on corruption charges a few weeks ago, Illinois politicians and prominent Democrats across the country have been declaring their outrage, demanding his resignation, and insisting that he not, under any circumstances, dare to proceed with an appointment of Barack Obama's replacement in the Senate, the position he is accused of trying to sell to the highest bidder. At the same time, it was clear that his opponents had few legal options. They could impeach him, but that takes time. The state Supreme Court rightly rejected Attorney General Lisa Madigan's frivolous attempt to immediately remove the governor from office by declaring him unfit. And now that Blagojevich has gone ahead and picked a new senator, as the Constitution unambiguously authorizes him to do, the threats to block the appointment seem equally empty. Senate Democrats have declared that they will refuse to seat Blagojevich's choice, former Illinois Attorney General Roland Burris, but it seems pretty clear they do not have the constitutional authority to do so. (Jack Balkin tries to make the case that they might, but he he seems unpersuaded by his own efforts.) It is hard to see how Blagojevich's loose talk about getting something of value in exchange for the Senate appointment, which may not even rise to the level of a crime on his part, makes his appointment of Burris any less legal. If the Democrats really cared about the rule of law, they would swallow their embarrassment and let Burris take his seat.