One of the major headlines in the news this week was the denial by the U.S. Senate of Roland Burris, the man appointed by beleaguered Illinois Senator Rod Blagojevich to assume President-Elect Barack Obama’s Senate seat. This may sound somewhat familiar to some of you, since a similar (but more extreme) incident occurred in the history of the Mormon Church when Reed Smoot was prevented from taking his seat in the Senate. The Huffington Post carried an article by Chris Weigant about the denial of Roland Burris in which Weigant highlighted the Smoot case as only the second time the Senate blocked a Senator from taking his seat. The first rejection was that of Hiram Revels, the first African-American Senator in 1870.
The second historical case is where the Senate again showed its bigotry by attempting to block the first senator from Utah, after it was admitted as a state. Reed Smoot was blocked from voting (although the Senate did allow him to be sworn in) for two years while the Senate investigated not just whether Smoot was a polygamist (he wasn’t) but also dissected the entire Mormon religion.
Last year Weigant wrote about the Smoot Hearings, and he referenced a portion of that piece in the Huffington Post article:
[W]hile Smoot wasn’t a serial marriage type of guy, he was pretty high up in the church hierarchy of the Latter-Day Saints (LDS). So the entire LDS church was put under the public microscope of a Senate investigation. Two full years were spent examining the Mormons, and the head of the church was called before the committee to be grilled on every aspect of the Mormonism, down to secret church rituals and dogma. The media of the day went along for the ride, with scandalous charges printed along with demonizing political cartoons. The hearings were packed, with lines outside for spectators to view.
Weigant also cites the preface of Vanderbilt professor and historian Kathleen Flake’s book, The Politics of Religious Identity.
The four-year Senate proceeding created a 3,500-page record of testimony by 100 witnesses on every peculiarity of Mormonism, especially its polygamous family structure, ritual worship practices, “secret oaths,” open canon, economic communalism, and theocratic politics. The public participated actively in the proceedings. In the Capitol, spectators lined the halls, waiting for limited seats in the committee room, and filled the galleries to hear floor debates. For those who could not see for themselves, journalists and cartoonists depicted each day’s admission and outrage. At the height of the hearing, some senators were receiving a thousand letters a day from angry constituents. What remains of these public petitions fills 11 feet of shelf space, the largest such collection in the National Archives.
If the previous Senate denial cases have taught us anything, it is that this is dangerous ground. Virtually all legal scholars from Erwin Chemerinsky to Eugene Volokh agree that until Governor Blagojevich steps down or is removed, he maintains the legal authority under Illinois law to appoint a replacement when a U.S. Senator from Illinois vacates his seat. And as UC Irvine Law Dean Erwin Chemerinsky wrote, “Senate Democrats are on weak constitutional ground in trying to deny a seat to a properly selected individual. Their claim to the power to exclude a lawfully chosen senator could create a dangerous precedent.” The 1969 Supreme Court case Powell v. McCormack makes this pretty clear: “the Constitution does not vest in the Congress a discretionary power to deny membership by a majority vote.” Alas, Powell was decided nearly a century too late for Senator Smoot, but perhaps it can quickly dispense with the current senatorial shenanigans.