Planning for Kennedy's Departure

You have to hand it to Democrats when it comes to how to fill a Senate vacancy: they have been downright shameless, at least in recent years.

Last week, Sen. Edward Kennedy (D-Mass.) made headlines when he wrote leaders of the Massachusetts legislature urging them to change state law and permit Democratic Gov. Deval Patrick to appoint a senator when a seat becomes vacant.

“I am now writing about an issue that concerns me deeply, the continuity of representation for Massachusetts should a vacancy occur,” wrote the 77-year-old Kennedy, in a poignant recognition of his battle with the same type of brain tumor which claimed the life of columnist Bob Novak last week. Underscoring his strong support for popular election of senators, the ailing Kennedy added, “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.”

In calling for the legislature to give the power of appointing a senator to Democratic Gov. Patrick, Kennedy was calling on them to reverse the law enacted in 2004 by the legislature (then, as now, overwhelmingly Democratic) that took away that power from then-Gov. Mitt Romney, a Republican.

As polls showed John Kerry either leading or close to being elected President in the summer of ’04, the legislature changed the law that allowed a governor to appoint a replacement senator, who would serve until the next regular election. As John Fund recalled in the Wall Street Journal last week, “Senator Kennedy made two direct appeals to the state senate’s president to revive the stalled bill, including a phone call to his home over a weekend.” The calls helped move the bill, which removed the governor’s power to appoint a senator and instead provided a “snap election” in five months. Romney vetoed the measure, but the legislature passed it over his veto.

Such a change was self-serving for Kennedy and the Democrats in 2004. Changing the law again and after such a short time would be even more self-serving.

And Look at Connecticut and Illinois

There are other examples of the self-serving nature of Democrats on the issue of filling Senate vacancies.

Earlier this year, the Connecticut legislature, which is overwhelming Democratic, removed the governor’s power to appoint a senator in the event of a vacancy. In Connecticut, the governor has had that power since World War II and it has been used by Democratic and Republican governors alike. In 1949, for example, then-Democratic Gov. Chester Bowles appointed his onetime partner in the advertising business, William Benton, to the Senate to fill a vacancy. But this year, Nutmeg State Democrats felt they had to deny Republican Gov. Jodi Rell that power. (Last month, Democratic Sen. Christopher Dodd revealed that he had prostate cancer and was seeking treatment).

Illinois is another example. Late in ’08, as stories about corrupt practices by Democratic Gov. Rod Blagojevich made headlines worldwide, Democrats were suddenly growing nervous about his filling the soon-to-be vacant Senate seat of Barack Obama. Secretly recorded conversations had Blagojevich offering the seat for campaign donations.

“The General Assembly should enact a law as quickly as possible calling for a special election to fill the Senate vacancy of Barack Obama,” declared Sen. Dick Durbin (D-Ill.), the Senate Majority Whip, “No appointment by this governor could produce a credible replacement.” (Roll Call, December 9, 2008).

A day after Durbin’s remarks, the Associated Press reported that President-elect “Obama believes the Illinois legislature should consider a special election to fill the seat.” Also on December 10, the AP reported that the top legislative leaders, House Speaker Mike Madigan and Senate President Emil Jones, had promised to convene their respective chambers.”

It never happened. Clearly fearing that a Republican might just win the special election if the vacancy law was changed, the Democratic powerhouses in Springfield never delivered on the change. On December 30, the embattled Blagojevich appointed Democrat Roland Burris to the seat, making him the lone African-American senator when Obama departed for the White House. Durbin and Senate Majority Leader Harry Reid (Nev.) issued a statement saying that “anyone appointed by Gov. Blagojevich cannot be an effective representative of the people of Illinois and, as we have said, will not be seated by the Democratic caucus. (AP, December 31, 2008).

But again they backed down. Burris was seated and is in the Senate today. No one has made a move to deny the Blagojevich appointee his seat.

What Will Feingold Say?

Regarding Kennedy’s call for changing Senate succession law in Massachusetts, the Boston Globe wrote that such a change “puts lawmakers in a delicate position.” That’s an understatement, all right.

Earlier this year, editorials nationwide decried the fact that so many appointed senators who had yet to face the voters were voting on critical issues such as health care and cap and trade. When Florida’s Gov. Charlie Crist appoints a fellow Republican to replace resigned Sen. Mel Martinez, he or she will be the sixth senator appointed to fill a vacancy since January.

In response to this, Sen. Russ Feingold (D.-Wis.) announced his support for an immediate amendment to the Constitution requiring immediate special elections throughout the nation whenever a Senate vacancy occurs. In so doing, Feingold invoked the name of his legendary predecessor, Sen. Robert “Fighting Bob” LaFollette (R.-Wis.), who championed the popular election of senators that became law through the 17th Amendment in 1913.

While one can (and should) debate Feingold’s amendment on grounds of state authority, one should also ask: what do you think of Kennedy’s view on this, Russ?