WASHINGTON: Senate Democrats threatened this week to refuse to seat any new senator chosen by embattled Illinois Gov Rod Blagojevich, but it is not clear the senators have the legal authority to reject a qualified appointee to fill President-elect Barack Obama’s Senate seat.

In 1969, the Supreme Court ruled the House of Representatives could not refuse to seat Rep Adam Clayton Powell, a New York Democrat who was accused of putting his wife on the payroll and misusing travel funds to vacation in the Caribbean. Despite those charges, he was re-elected.

“The Constitution does not vest in the Congress a discretionary power to deny membership by majority vote,” wrote Chief Justice Earl Warren. Congress may “judge only the qualifications set forth in the Constitution,” he said.

The qualifications are minimal. A senator must be at least 30 years old, a US citizen and “an inhabitant” of the state.

The ruling in the Adam Clayton Powell case served as a precedent in 1995 when the Supreme Court struck down term limits for members of Congress. The justices said the states may not add extra qualifications for serving in Congress, including restricting the years of service. In Warren’s opinion, he said the Senate’s power over its members “is identical” to that of the House.

The court referred to an elected representative but its opinion did not address whether an appointed Senator would have the same standing.

But legal experts say the Senate does have the right to look into whether a senator’s election or appointment was valid and lawful.

”It’s true the Senate cannot add qualifications, but it has to recognise an election or a selection as valid,” said Trevor Potter, a Washington lawyer and former chairman of the Federal Election Commission.

In 1974, the Senate refused to seat Louis Wyman, a Republican from New Hampshire who won in a second recount by two votes. The Democrat, John Durkin, objected. He had won the first recount by 10 votes. The Senate voted to send the matter to the Rules Committee. It too was deadlocked, and the two candidates agreed to run in a special election. Durkin prevailed.—Dawn/LA Times-Washington Post News Service