Labor attorney Tom Geoghegan, a friend who’s now running for the congressional seat Rahm Emanuel’s giving up, made an interesting argument in the New York Times this week that its unconstitutional for Rod Blagojevich to appoint Roland Burris to the Senate to fill out Barack Obama’s term. That’s not because the governor is in the process of being impeached and indicted, and not because Burris is tarnished goods. The 17th Amendment, as Geoghegan reads it, requires a special election. 

And then again, Blagojevich is in the process of being impeached and indicted, and Burris is damaged goods. Blagojevich’s appointment has done Burris the disservice of causing some people to look closely at his record for the first time in his long political career, and there isn’t much to see. Burris has his own pay-to-play history to explain away, and in a defining moment in his term as attorney general, Rolando Cruz’s appeal of his death sentence, he’s accused of ducking and covering when the the right thing to do would have required political courage. Cruz’s innocence, says an assistant attorney general who resigned in protest, wasn’t enough for Burris to get involved.

The people of Illinois won’t get the special election the 17th Amendment says they deserve, but if they did, how would they vote? Unfortunately, at this writing there’s been no poll taken of Illinois voters. A national poll by USA Today-Gallup reported that 51 percent of the public felt that the Senate should “block Burris from filling the seat,” and just 27 percent said the Senate “should allow Burris to fill the seat.” My guess is that the biggest difference among Illinois voters is that the 21 percent with no opinion would be a lot smaller.

By caving on Burris and ducking a special election, are President-elect Obama and the Democratic-controlled U.S. Senate and Illinois General Assembly priming angry Illinois voters to elect a Republican to the Senate in 2010? Maybe. And maybe Obama and the Senate leadership are willing to run that risk to add the docile, go-along Burris to the ranks of sure Democratic votes for the next two years. Obama obviously has some pretty contentious legislation in mind, and Burris would be the 59th Democrat in a chamber that requires 60 votes to get anything controversial passed. Finding one friendly Republican could be a lot easier than finding two.

As things stand now, in 2010 there will be 19 Republican Senate seats up for election and 16 Democratic seats. If the Democrats add a couple more seats then, the loss of Burris’s seat will be a price worth paying.

But cynicism is no more fun to breathe than ozone. To watch a man you don’t respect sent to Washington by a governor who’s probably on his way to prison to represent voters who, if asked, would surely repudiate him, and to see the first autonomic spasm of revulsion be followed by calculation and acquiescence is — well, it’s difficult. About as difficult as reading a legal opinion that explains that justice is about the process, not the results, and therefore innocence, per se, isn’t grounds for appeal.