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Ted Kennedy's (Interim) Successor

Like Matt Yglesias, I'm puzzled by the charge that it's somehow hypocritical for the Massachusetts legislature to modify their 2004 modification to their succession laws. Basically, the 2004 change blocked Mitt Romney from appointing a successor if John Kerry vacated the seat to assume the presidency. The 2009 change would allow Deval Patrick to appoint an interim senator in advance of a special election.

These two mechanisms are somewhat opposed, but the principle is the same: Voters should keep what they voted for until a special election can be held. In 2004, a Republican governor appointing the replacement for an elected Democrat didn't make a lot of sense. In 2009, a vacant seat doesn't make a lot of sense. But what you're basically seeing here is that the 2004 change was shortsighted. It's weird to give governors any autonomous role in this process. If I were writing these laws, every senator would have a "living will" of sorts that names an interim replacement in the event of their incapacitation, and those interim senators would not be able to compete in the subsequent election. And that's what Massachusetts should do. Let Patrick pick the interim senator this year, as Kennedy can't do it, but write the legislation such that it won't need to be changed every few cycles.

By Ezra Klein  |  August 28, 2009; 6:03 PM ET
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Next: What Happened to Chuck Grassley's Deficit-Improving Health-Care Plan?


Come on! We are not five years old! Ted Kennedy pushed through the change, using his clout, in 2004 simply because he didn't want Romney to appoint a Republican when Kerry was "supposed" to win. And all the liberal groups supported it because it was the right thing to do "to let the voters decide." Suddenly, because of an unfortunate circumstance, this reasoning really isn't the right way to go. How is it suddenly "the wrong way to represent Massachusetts?" The unfortunate circumstance isn't really that a Senator died. It just happens to be that the Republican governor who didn't have the right to supplant the voters will has left office, and there is now a reliable Democrat who would appoint the "correct" replacement. Do you wonder why in the heck we think that stinks? Honestly? Take a look into yourself and for one minute be honest. You don't even have to admit it out loud.

Posted by: ohbrother2 | August 28, 2009 6:43 PM | Report abuse


you're almost pulling me over to your point of view but i've gotta say one thing. he supposedly penned this letter in July? A month or so before his death? Was he really behind this letter? We'll never know but I'm wondering how much influence the party's left leaders had to do with it. I'm not a conspiracy theorist but this just smells fishy if you've ever known anyone with terminal brain cancer in their last month or so of life. I have and every case is different but hmmm.

Posted by: visionbrkr | August 28, 2009 7:06 PM | Report abuse

I'm sorry but anyone who advocated a change when a Republican was governor should really learn to live with the consequences of taking the Senate replacement choice out of the hands of the governor.

And besides, as an Illinois resident, I've learned that allowing the governor to select the choice of the people can be extremely damaging.

Posted by: anne3 | August 28, 2009 7:55 PM | Report abuse

"I'm sorry but anyone who advocated a change when a Republican was governor should really learn to live with the consequences of taking the Senate replacement choice out of the hands of the governor."

On the flip side, if Democrats had the authority to change the rules in '04, why shouldn't they also have the authority to changes the rules now, since they're still in power?

Posted by: bluegrass1 | August 28, 2009 8:39 PM | Report abuse

I think your law would be unconstitutional, Ezra.
The 17th Ammendment states:
When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, 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.

So, any state may preclude it's Governor from making a temporary appointment to the Senate. And it has become solidly established that any state may set constraints on how and when its Governor makes a temporary appointment, and even dictate the party he/she may select from.

But the state's Executive Authority MUST be the one to make the choice.

Now, Utah and Wyoming do something close to what you describe. They require the Governor to select an interim Senator from a list of three candidates proposed by the state central committee of the political party of the previous incumbent. But it's the Governor who actually makes the choice. Your law could work this way, with a Senator's "living will" consisting of a short list of 3 preferred interim replacements.

However, with the requirement that the interim Senator be barred from competing in the Special Election, you'd probably be running afoul of state election laws.

I think that's why Senator Kennedy suggested only that the Governor secure an "explicit personal commitment not to become a candidate in the special election" from any potential interim Senator.

Posted by: andrewlong | August 28, 2009 11:56 PM | Report abuse

Your 'living will' idea might be the best solution to a bad problem. There are just no good ways to replace congresspeople quickly, and leaving empty seats is just as problematic. If every congressperson had a pre-defined temporary successor, a lot of partisan rancor could be avoided.

Posted by: devpsychsmith | August 29, 2009 3:10 AM | Report abuse

i hope that if an interim successor is chosen, it will be victoria reggie kennedy.
she gave him the strength and love to continue his work in congress, and she is committed to the same ideals as her husband.
i hope she continues his good works.

Posted by: jkaren | August 29, 2009 8:20 AM | Report abuse

Well, if this makes real health care reform more likely, then do it.

Anything that makes real health care reform more likely in this country -- I'm in favor of. Anything. Just do it.

Posted by: leoklein | August 29, 2009 11:42 AM | Report abuse

Ezra, can you really talk yourself into this?

Posted by: kingstu01 | August 29, 2009 1:48 PM | Report abuse

Klein, you have really outdone yourself. If you think anybody with a lick of sense would be stupid enough NOT to see what is really going on here, then you're living in some alternative universe. You must think the rest of the world is just unbelievably naive.

Posted by: WashingtonDame | August 29, 2009 6:09 PM | Report abuse

If ever the Republicans get control of the legislature in the People's Republic of Massachusetts they will change the law as quickly as they can to replace a deceased Senator or Representative with a Republican. I can't think of why they shouldn't. It's their job as elected representatives to increase their power and the power of those that voted to elect them to a majority.

Hopefully Democrats in Massachusetts will do their job by giving Patrick the go-ahead to provide a temporary replacement for Senator Kennedy as soon as they get back from their vacations.

Posted by: NealB1 | August 29, 2009 10:17 PM | Report abuse

I suppose it's a little late to mention this, but does it really matter whether there is someone to fill Kennedy's seat for the health care vote. After all, the cloture rule requires 3/5 of all Senators duly chosen and sworn in. I imagine that the Senate Parliamentarian would not be such a stickler that he would count Kennedy as sworn in despite being dead. In which case you need the votes of 59 members (or 59.4 members, but I assume that the Parliamentarian would have to follow standard practice and round to the closest whole number). So unless I'm missing something on the rules--such as a rule that you have to round up--then I'm not sure that this changes the prospects of getting a cloture motion passed.

Posted by: batemand | August 31, 2009 1:40 PM | Report abuse

"Voters should keep what they voted for until a special election can be held."

That would be Ted Kennedy, and he's dead.

And this:
"But what you're basically seeing here is that the 2004 change was shortsighted." just plain nonsense, Ezra. As if a more thoughtful 2004 Massachusetts legislature would have given Romney the power of interim appoinment? Do you honestly believe your own words here? Just how stupid do you think you readers are, anyway?

This is Democrats manipulating the law to increase Democrat power. The least you could do is own up to it instead of such a ridiculous rationalization.

Posted by: whoisjohngaltcom | September 1, 2009 9:43 AM | Report abuse

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