Reid to Blago: Don't even bother picking Obama's replacement, they're not welcome

Harry Reid drafted a letter to Blagojevich today telling him to resign, and not to dare picking Obama's replacement. All 50 Democratic Senators reportedly signed the letter.

Many people don't realize that the Senate is constitutionally empowered to choose the qualifications of its own members. Here's the relevant passage of the US Constitution:

Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Business; but a smaller number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide.

Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behavior, and, with the Concurrence of two-thirds, expel a Member.

But Nate Silver, over at FiveThirtyEight.com, says not so fast.

Contrary to much reporting -- including some of our own - the U.S. Senate probably lacks the Constitutional authority to refuse to seat an appointment made by indicated Governor Rod Blagojevich....

The tricky part here is that Article 1 of the Constitution stipulates that the Senate is the "Judge of Elections, Returns and Qualifications" of its own members. The Senate actually has fairly broad latitude on questions of "Elections and Returns", which is why it could intervene, say, in the Minnesota recount (as it has done in similar cases in the past). An appointment, however, is not an election, which means the only vehicle open to the Senate is challenging the appointee's qualifications, and the Powell v McCormack precedent stipulates that such a review would be limited to his age, residency or citizenship. What the Senate would have to do instead is actually expel the member they just admitted to the chamber, which requires a 2/3 majority and would be much stickier in terms of precedent -- the Senate has not expelled a member since the Civil War.

Now, having said all of that, Blago is an idiot if he tries to appoint someone after all 50 Democratic senators told him "don't." But an even bigger idiot will be the person who actually accepts Blago's appointment.