Senator Kirk
posted by Jon Siegel
Governor Deval Patrick of Massachusetts has appointed former Ted Kennedy aide Paul Kirk to fill Kennedy’s Senate seat. This action follows a change in Massachusetts law to permit such appointments — previously, Massachusetts Senate vacancies could be filled only by special election.
The New York Times previously opined that it was wrong for the Massachusetts legislature to make this change in law because Senate seats should always be filled by election, not by appointment. But Massachusetts made the right move. The problem with appointed Senators is not that we currently have so many of them (which we do, because so many elected Senators left to take cabinet posts in the Obama administration), but that so many of the appointed Senators were, in accordance with their states’ laws, appointed to fill out the entire remaining term, or at least too much of the remaining term, of their predecessors.
The Massachusetts law represents an appropriate compromise. It avoids leaving a Senate seat unfilled for months (which is unfair to the state involved and its citizens) and it also avoids allowing an appointed Senator to serve for a long time (which gives too much power to the state’s Governor at the expense of its people). It allows the Governor to appoint a Senator to serve on an interim basis until an election can be had in just a few month’s time.
It’s undoubtedly true that the Massachusetts legislature had political motives in denying the previous (Republican) Governor the power it just granted to the current (Democratic) Governor. But in politics, sometimes you do the right thing for the wrong reasons. The Massachusetts legislature acted appropriately in allowing Governor Patrick to fill Senator Kennedy’s seat.
September 24, 2009 at 12:02 pm
Posted in: Politics
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Responses (4)
anon - September 24, 2009 at 2:58 pm
While I think this is true to an extent, isn’t there a serious problem with the Governor acting as “kingmaker”? That is, in many cases, the Governor may appoint someone who intends to run for the seat and acts as the incumbent in the election. In this case, obviously, Kirk is a place-holder, but it may not necessarily be so in other cases. To me, the five-month vacancy period is not terribly significant when facing the risk of a Governor’s unilateral choice.
Jon Siegel - September 24, 2009 at 3:17 pm
That’s true, the appointee gets a leg-up on the next election, but the Governor would always be within his rights to *endorse* a Senate candidate. It’s true that actually putting someone in the office is even more powerful than an endorsement, but the Governor could achieve some of the same effect by simply endorsing. So I’m not so troubled by the advantage given.
Howard Wasserman - September 24, 2009 at 3:30 pm
I have never quite understood this sudden widespread (seemingly just this year) opposition to senatorial appointments. The 17th Amendment, which includes this delegation of appointment authority, is 97 years old. Admittedly there have been an unusually large number of vacancies this year and some strange political games, of which Massachusetts is only the latest.
I especially don’t get the argument that any appointee should only be a placeholder who promises not to run again, which seems like a troubling out-of-the-gate limitation to place on an office holder and reflects a real distaste for electoral processes.
anon - September 25, 2009 at 1:56 pm
Prof. Siegel, it’s true that a Governor can endorse a candidate, but running as an incumbent has a series of advantages that a mere endorsement does not have (including the actual title of sitting senator, access to the postal services, etc.).
Prof. Wasserman, I think that much of recent fury has come from Gov. Blagojevich in Illinois having the opportunity to name a replacement while under impeachment investigation, and Gov. Patterson (not even elected as governor, but elevated to the position of governor in New York only after Gov. Spitzer resigned) having the opportunity and seriously considering what many regarded as a not-terribly-wise choice in Caroline Kennedy.
Add that to Massachusetts, and that’s three instances in the last year where there have been problems. On top of that, Gov. Crist in Florida recently appointed a placeholder for Sen. Martinez as Crist throws the hat in the ring for his own candidacy. Then there were questions about whether Gov. Palin might appoint herself if Sen. Stevens resigned. And then there are the awkward terms in some states of succession: in Wyoming in 2007, Democratic Gov. Dave Freudenthal was forced to selected a Republican to succeed the late Sen. Craig Thomas, and in Arizona, if Sen. McCain had vacated his seat, then-Democratic Gov. Napolitano would have been constrained the same way.
It’s this flurry of activity that, I think, has brought the issue to a head.
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