Seat Senator Burris

"When vacancies happen in the representation of any state in the Senate...The legislature of any state may empower the executive thereof to make temporary appointments ..."
Amendment XVII to the US Constitution ( in part)

"Each House shall be the judge of the elections, returns, and qualifications of its own members..."
Article I, Section 5 of the US Constitution (in part)

On Tuesday, December 30, 2008, Illinois Governor Rod Blagojevich appointed Roland Burris, former Attorney General of the state, to the US Senate seat vacated by President-Elect Barack Obama, in accordance with the 17th Amendment quoted above and Illinois law. However, since Blagojevich is facing charges of trying to sell that Senate seat :
1. Illinois Secretary of State Jesse White indicated that he would refuse to certify this appointment.
2. Democratic Senate Leader Harry Reid of Nevada said that under the circumstances any Blagojevich appointee "would serve under a shadow" and should not be seated.

Who is right? Who is wrong?

1. Certification
I contend that the Secretary of State of Illinois has a legal duty to certify this appointment and any other lawful acts of the incumbent Governor. The certification requirement is merely an administrative act, like a notary public certifying a document. I do not believe that the people of Illinois ever intended to give the Secretary State a type of veto power over the acts of the Governor, especially one not constrained by an override provision. If Mr White is correct, the Secretary of State is more powerful than the Governor, whose veto is subject to legislative override.
If White refuses to certify the appointment, Blagojevich should have the document authenticated by an attorney and forward it to the Senate. If the question goes to court, I believe that the ruling will support the Governor's right to make the appointment effective without the consent of the Secretary of State.

2. Seating the Nominee in the Senate
In 1969 the US Supreme Court ruled that the House of Representatives did not have the authority to exclude Rep. Adam Clayton Powell (D, NY) (1). Since the Constitutional provision cited above about the right of each house to judge the qualifications of its members applies to the Senate as well as the House of Representatives, that decision should be dispositive in the Burris case, especially since Burris (unlike Powell) is not personally suspected of corruption.
I contend that if a person has been appointed to a Senate vacancy in accordance with the laws of the state in which the vacancy occurred, the Senate must accept the new senator, "shadow" or no "shadow." If Harry Reid and his colleagues believe they have the right to reject a nominee because of charges pending against the Governor of the state, I say they are wrong and will be ordered by a federal court (perhaps even the US Supreme Court) to seat Burris.

3. Political Ramifications
Rod Blagojevich is facing both impeachment proceedings and federal indictment. Since the rules of impeachment are much more flexible than those of a criminal conviction, there is a better chance that he will be removed from office than convicted in court. But right now he legitimately exercises all the legal powers of the Governor of Illinois, just as President Bill Clinton acted as President even after impeachment and while on trial in the Senate in 1998. I do not recall Senator Reid questioning Clinton's prerogatives of office at that time, including his right to fill vacancies in federal offices. Did Reid believe that Clinton or his appointees were "serving under a shadow?" Not that I recall.
Burris, who is not one of the senate candidates mentioned in the notorious Blagojevich wiretap tapes, has served in various high Illinois offices (off and on) since 1973, without scandal. In Illinois, that is not a routine achievement. He was chosen probably because he is the only living Illinois Democrat not actively working to either impeach or indict the Governor. It was politically astute for Blagojevich to pick a black senator, since other black politicians (such as Rep. Bobby Rush) could be expected to support the nomination. Moreover, it will be embarrassing for Democratic senators and/or Obama to publicly oppose seating the nominee. (2)

The Illinois legislature has had nearly two months (since Obama won the presidency) to change the law so that vacancies in the state's two US Senate seats would be filled by special election instead of appointment by the Governor. The legislature failed to act, the Governor did act, and now Roland Burris is legitimately the junior senator from Illinois. Live with it, and move on!
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(1) Powell vs McCormack. Powell, a corrupt and arrogant politician, was expelled from the House in 1967, and later lost the Democratic Primary in Harlem to Charles Rangel, who continues to represent the district.

(2) If US senators were chosen at random from the American people, about 12 of them would be black. Right now, none are.