Posted by Eugene Volokh:
Could Senate Refuse To Seat a Senator Appointed by Gov. Blagojevich?
http://volokh.com/archives/archive_2008_12_07-2008_12_13.shtml#1229032345
[1]Senate Majority Leader Harry Reid and Senator Richard Durbin
(D-Ill.) seem to say "yes":
Please understand that should you decide to ignore the request of
the Senate Democratic Caucus and make an appointment we would be
forced to exercise our Constitutional authority under Article I,
Section 5, to determine whether such a person should be seated.
The problem: The Supreme Court held in [2]Powell v. McCormack (1969),
that "in judging the qualifications of its members Congress is limited
to the standing qualifications prescribed in the Constitution," such
as age and citizenship. Now perhaps the Senators are right and the
Court was wrong, and perhaps today's Court would overrule Powell; but
at least at this point, Powell seems to make clear that under Article
I, Section 5 the Senate may determine whether the Senator should be
seated solely based on the objective qualifications that the
Constitution prescribes, and not based on its judgment whether Gov.
Blagojevich ought to be entitled to make the appointment.
(I note that it's conceivable that if there's an allegation that the
appointment is the result of a bribe, the situation might be
different, but I take it that the Senators' threat isn't limited to
such situations.)
References
1.
http://voices.washingtonpost.com/thefix/2008/12/reid_indicates_preference_for.html#more
2.
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=395&invol=486
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