K&R this post if you believe Burris should be seated.

Article I, section 5 reads: "Each House shall be the judge of the elections, returns and qualifications of its own members."

Hence the Senate may refuse to seat Burris for three reasons: because he is not qualified under Article I, section 3, because the election returns do not support him, and because his election was not properly conducted. ... Section Two of the Seventeenth Amendment modifies Article I, section 5. It states:

"When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the Legislature of any State may empower the Executive thereof to make temporary appointments until the people fill the vacancies by election as the Legislature may direct."

Thus, you might argue, the Senate must treat a person appropriately appointed by the executive authority of the state as duly elected for purposes of Article I, section 5.

But that is precisely is the basis of the Senate's refusal to seat Burris. In the Senate's view, Burris has not been properly appointed by the executive authority of the State of Illinois.... {because}, for starters, it looks like the Governor might be corrupt and was trying to sell the seat.

But, you might respond, the Governor has not been convicted of anything. Surely he is innocent until proven guilty.

True enough. But Article I, section 5 does not contemplate a criminal proceeding. Rather, it contemplates that the Senate will be the judge of the circumstances of election (or in this case, after the Seventeenth Amendment, an appointment.).

Some legal scholars side with Burris

Although the Senate today turned away Roland Burris, there's a growing number of legal scholars who believe that the US Senate does not have the authority to refuse to seat him.

The Democratic leadership argues that it has the duty to protect the Senate's integrity and that allowing a governor accused of corruption to appoint a senator would taint the body. But that argument is rejected by a growing number of both liberal and conservative legal scholars.

Among the liberals, professor Erwin Chemerinsky, dean of the law school at UC Irvine, writes in today's Los Angeles Times: "Allowing the Senate to exclude Burris on any except the narrowest of grounds would create a dangerous precedent. It could open the door to the Senate or the House overturning the will of the people and excluding representatives under one or another pretext. If Burris -- whose appointment meets the legal test, no matter what you think of Blagojevich -- is not seated, other properly elected or appointed representatives also are at risk."

Among the conservatives, Bruce Fein argues that Blagojevich is still the governor, despite the accusations. In today's Washington Times, he says: "That Mr. Blagojevich was under a dark criminal and impeachment cloud when he elevated Mr. Burris is beside the point. President William Jefferson Clinton did not forfeit his power to appoint, sign legislation, or negotiate treaties during his impeachment ordeal. And Democrats are not questioning Mr. Blagojevich's general authority to discharge his gubernatorial responsibilities until or unless he is impeached, convicted and removed from office. Mr. Burris' appointment has been made a lone exception for partisan political reasons."

http://www.newsweek.com/id/177640/page/1

Kenney wrote a confidential memo urging Attorney General Burris to acknowledge error in the case, thus paving the way for Cruz to get yet another trial, but to no avail. She concluded she had no choice but to abandon the career to which she had so long aspired.

"I cannot sit idly by as this office continues to pursue the unjust prosecution of Rolando Cruz," she wrote in an impassioned letter of resignation to Burris, who assigned the case to another lawyer in the office. Nine months later, to Kenney's great consternation, the Illinois Supreme Court affirmed Cruz's conviction. But the story still wasn't over. As a result of Kenney's courageous stance, intense attention was now focused on the case, both by the media and by the local community. The deans of six Illinois law schools and a group of prominent former prosecutors filed friend-of-the-court briefs in support of a rehearing for Cruz. In 1994, the state Supreme Court bowed to the pressure and reversed the second conviction, awarding Cruz yet another trial, his third.

As the trial approached in 1995, DNA technology had advanced sufficiently to link Dugan and Dugan alone to the crime.