In July 2004, optimistic about John Kerry's chances of being elected President but fearful of how Gov. Mitt Romney would fill the ensuing Senate vacancy, Massachusetts legislators stripped Romney of his temporary appointment power, overriding his veto and requiring that any Senate vacancy remain unfilled until a special election would be held between 145 and 160 days after the vacancy was created.
And it's certainly a popular view here that gubernatorial appointments, in general, are a problem -- witness Gov. Paterson's and Blagojevich's recent messy selection processes of Senators Gillibrand and Burris, and I know some here take issue with the recent appointments of Sens. Michael Bennet and Ted Kaufman as well.
Sen. Ted Kennedy is hoping you'll change your mind.
In a poignant July 2 letter just released publicly (PDF), he expressed deep concern about a possible five-month vacancy in Massachusetts' Senate representation, urging leading Massachusetts Democrats to give Gov. Deval Patrick the power to appoint someone to the vacancy for those five months, suggesting that the Governor make as a condition of that appointment that the temporary Senator make an explicit personal commitment not seek further election to the post. With regards to the law requiring speedy elections to any appointment, Kennedy writes:
I strongly support that law and the principle that the people should elect their senator. I also believe it is vital for this Commonwealth to have two voices speaking for the needs of its citizens and two votes in the Senate during the approximately five months between a vacancy and an election.
The nation can ill afford such a vacancy either.
That said, I'm not crazy about the notion that Massachusetts might keep changing its temporary appointment powers depending on who the Governor is -- and it's possible to get this right, once and for all. While allowing a seat to flip parties may have its advantages for Democratic governors facing sudden Republican vacancies (Harris Wofford, 1991), and equivalent risks when the roles are reversed (Nicholas Brady, 1982) (and then there's the brief Senate stay of Dean Barkley), there is another, more durable course which can be charted.
As a comprehensive recent CRS report explains, four states allow for a gubernatorial appointment to fill Senate vacancies but require that the the appointed Senator be of the same party as the previous incumbent -- Arizona, Hawaii, Utah and Wyoming, with the latter three requiring the governor to choose from among a list of three prospective candidates submitted by the same political party as the previous incumbent. As you may recall, this is how Wyoming's John Barrasso (R) was appointed by Gov. Dave Freudenthal (D) in June 2007 to fill the vacancy caused by the death of Sen. Craig Thomas (R).
Now, there are very interesting constitutional questions as to whether the 17th Amendment forbids such encumberances on a governor's appointment power -- whether its allowance 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" functions as on-off switch for such gubernatorial power, and not as a dimmer which can put any constraints on the exercise of that power. I think the principle behind what those four states are doing is important, and I'd like to see such questions resolved in court and in the Senate, if need be, rather than letting them scare states away from attempting this path.
We can all agree, perhaps, that a two-year appointment to a Senate vacancy before facing the voters is undemocratic. The selection of Senators should be before voters sooner than that. But I also believe that protracted vacancies in the Senate -- especially at this time -- cannot be tolerated, and Senator Kennedy's suggestion that a caretaker be appointed followed by a swift election should a vacancy occur is one which I hope the Commonwealth of Massachusetts adopts. Add to that a requirement that any temporary Senator be of the same party as the incumbent creating the vacancy, and I believe Massachusetts will have a durable solution which the rest of the Nation should follow.
(Additional discussion is going on in Sloth's recommended diary.)
