02/02/2009 05:12 am ET Updated May 25, 2011

Senator Roland W. Burris of Illinois?

The appointment of Roland W. Burris to the United States Senate, vise Barack Obama, by Governor Rod R. Blagojevich of Illinois has been greeted with virtually unanimous condemnation by members of the Senate and the press. The reasons for opposition assigned are the fact that the Governor appears to have tried to sell the Senate seat as disclosed in a number of court-authorized wiretaps; that the Governor has been arrested (but not yet indicted) pursuant to a federal criminal complaint; and that, from all tha appears, the Governor is shortly to be impeached and convicted by the Illinois legislature.

There is no dispute that the Governor's appointment is legal under Illinois law, particularly when the Legislature declined to pass legislation establishing a special election for the vacant Senate post thereby appearing to endorse the Governor's appointment power by not taking it away from him.

The Governor's appointment is valid and Mr. Burris is entitled to be seated as a United States Senator from Illinois.

For purposes of considering the validity of this appointment, the Governor must be viewed as an institution -- the validly sitting chief executive of Illinois--and not as the individual charged with crimes and other manifestly impeachable offenses.

Under the Constitution, this appointment cannot be rejected by the Senate on the grounds that the members don't like the Governor and think he is a criminal, or for any reason other than that the appointee is ineligible under the Constitution because of age, residency or citizenship.

The Seventeenth Amendment to the Constitution, effective in the 1914 election, provides for the popular election of Senators who had theretofore been selected by the state legislatures. Clause 2 of the Amendment provides that in the event of vacancies as in this case, "the executive authority of each State shall (sic) issue writs of election to fill such vacancies."

The Supreme Court (in an 8-1 decision written by Chief Justice Earl Warren, with Justice Potter Stewart dissenting only on the grounds that he thought that the dispute was moot) has declared in Powell vs. McCormack that the House had no right to refuse to seat Representative Adam Clayton Powell of New York on grounds of expenditures improperly charged to the House and his status as a contemnor in New York state courts because such an exclusion was not based on age, residency or

It is now proposed by the Senate's leaders that Mr. Burris' appointment be referred to a Senate committee to investigate the circumstances of his appointment thereby delaying Mr. Burris' service as a Senator until after the date of the Governor's proposed impeachment and a new appointment by the current Lieutenant Governor, a person the Senate leaders appear to like and respect. This behavior by the Senate finds no support in the Constitution.

The parade of horribles marching out of the Senate's refusal to admit an appointee of a Governor when the Governor is disfavored does not need to be repeated here. Suppose the Governor is a Communist or pro-Palestinian or supports further war in Iraq. What then?