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Wag The Blog: Sen. Tim Johnson

Today marks a new feature on The Fix -- Wag The Blog.

We want to develop ways to grow our Fix community and, on occasion, give readers the first word on interesting political developments or issues. We won't have a Wag The Blog thread on The Fix every day, but we are committed to doing it at least once a week. The goal is to foster civil discussion by letting you -- the reader -- play a larger role on the blog.

The question below is intended to spark discussion and should not be read as our personal position on the issue. In fact, we will strive to ask questions that will be applicable and interesting to people of all political stripes.

We'll be monitoring the comments section occasionally to pluck out particularly thoughtful entries for display on The Fix. While we recognize that reasonable people can -- and often do -- disagree vehemently about politics, we ask that you do so in the most civilized manner possible. After all, everyone on this site has at least one thing in common -- an interest in American politics. So before you write a poison-pen comment, think of your fellow political junkie who probably has many of the same hopes, fears, and aspirations as you.

Without further ado, let's get to today's Wag The Blog question:

South Dakota Sen. Tim Johnson (D-S.D.) continues to make a slow recovery from emergency brain surgery and is unlikely to vote in the Senate for several months -- if not more.

The 17th Amendment of the Constitution, which covers the election of senators, allows for a senator to be removed from office only by death or resignation, regardless of his or her physical condition. Over the years, senators of both parties have missed scads of votes as they recuperated from serious illness.

Question: Should the Constitution be amended to require that a seat be declared vacant if a senator is unable to perform his or her legislative duties? (Remember that the 25th Amendment sets out a process by which the president can temporarily sign over powers to the vice president should he become incapacitated.)

The comments section below awaits your thoughts.

By Chris Cillizza  |  January 10, 2007; 9:58 AM ET
Categories:  Senate , Wag The Blog  
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Next: Wag the Blog: Your Thoughts on Sen. Tim Johnson

Comments

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Posted by: tgdfsdjk | January 26, 2007 10:58 AM | Report abuse

To all the people here who say "we need special elections, instead of letting the Governor decide who should take the seat", I ask, did the people not elect the Governor as well and is that not part of his job description? Absoloute democracy never works, and I don't know why liberals, who claim they stand up for the minority all the time, want polls and "special elections" to decide things like this.

Posted by: Ashby | January 15, 2007 1:55 PM | Report abuse

I'm with those that don't like mucking up the Constitution to account for every contingency that comes up.

If the South Dakota governor were a Democrat, likely to appoint another Democrat, no body would be discussing an amendment like this. The same would be true if the Democrats had a big enough majority that a switch of parties for a Senate seat should not make a difference. We've had a long history of incapacitated Senators and Congressmen. The Constitution as it's written has served us well. Let's leave the Constitution alone.

And I agree with others that believe Republicans are two-faced on this issue. If Johnson's resignation meant a shift to Democratic power, none of them would want such an amendment.

The best example is term limits. Remember when a contitutional amendment to force term limits on congress was part of the GOP "contract with America?"
The Republicans at the time thought they could not get a majority in Congress because the so-called "power of incumbancy" was in the Democrat's favor. But the Republcans came to power anyway in the 1994 elections. And when they were in power, suddenly "term limits" were not such a good idea. The issue has disappeared in congress.

But unfortunately the idea went on the ballots of a lot of states, including here in Montana. We, who have a part-time legislature that meets only in odd-numbered years, had always had a lot of turnover among representatives and constant switching back and forth between the party in power. Split governemnt had long been the norm in Montana.

We are now saddled with a legislature dominated by rookie represenatives and Senators. None are in long enough to develop the kind of institutional memory that allows some consistancy in Government.

Posted by: Alan in Missoula | January 11, 2007 3:42 PM | Report abuse

I think it is important that the people are always given a representative to do their voting, so if someone is too sick to fulfill their duties at a given time, he should be allowed to have a "standin" to do his voting, etc. I think where the problem comes in with the present law, in the case of South Dakota for sure, is that they designate the Governor to be the one to name the replacement. This should not be allowed to become a political football, and to prevent that, I think the head of the party the elected representative belongs to should be the one to name his interim replacement. When and if the elected representative can return to his job, the interim replacement would step down. This is fair to both parties, and at the same time best reflects the wishes of the voters.

Posted by: Curtis N. Coleman | January 11, 2007 2:56 PM | Report abuse

one other note, control of the Senate mid-session does not necessarily result from a change in which party constitutes a majority in the chamber. Each two year Senate session begins with the passage of a Senate organizing resolution. A switch in control of the chamber and makeup of committees can only occur if the resolution provides for such a possibility, and such a provision is very rare. The chamber did switch in 2001 when Sen. Jeffords decided to caucus with the Dems. The reason that the organizing resolution for the 2001/2002 Senate allowed for the switch is simple. In 2001 when the new senate class was sworn in, the Senate was split 50/50. The Senate was in session and sworn in while V.P. Al Gore was still presiding, and casting tie-breaking votes, over the chamber. Bush/Cheney would not enter office for another two weeks. This meant that the organizing resolution had to allow for a switch in control of the chamber when a change occurred in order to allow the Republicans to seize control once Cheney was VP. In exchange, the dems were guaranteed equal membership and funds on each committee. So while that seems to be the frame of reference when we consider control of the chamber, the circumstances which required a provision to allow for Senate control to change mid-session in 2001 are simply not present in this congress.

Posted by: JOT | January 11, 2007 2:32 PM | Report abuse

An important point to make here is that while state law governs the filling of Senate vacancies, it would be Unconstitutional for a State law to provide for the removal of a Senator due to incapacitation. The Constitution only anticipates a vacancy in the event of death, removal, or resignation. The rules of statutory interpretation would consider this list exclusive, meaning that those are the only three ways a vacancy could occur, so a state law provision would be unconstitutional. We do have a solution to this "problem" already; removal. Each chamber is responsible for and has control over the make-up of its membership. The Senate could, hypothetically, remove a member for any reason, including incapacitation. Removal of a Senator by their fellow colleages is rare, but can be used in a case of incapacitation and has the built in protection that control of the chamber would never switch due to a 25th Amendment-like incapacitation provision.

Posted by: JOT | January 11, 2007 2:06 PM | Report abuse

I liked the post that said, "in a word...no"
Senator Johnson is a tremendous person and is exactly what the Senate needs. He may be down, but he's certainly not out.
What a bunch of vultures these Republicans are. Instead of fixing what's wrong with this country, their party and the president, they lick their collective chops and look for ways to get their way like a bitter little child. Oh, excuse me, that describes the whitehouse (small letters on purpose)

Posted by: scott from SD | January 11, 2007 12:23 PM | Report abuse

Sen. Johnson will be back at work soon enough. We have elected and re-elected Tim Johnson to work for us for many years and he regularly has exceeded our expectations. We couldn't ask for more. We don't fire our best employees merely because they have surgery. We want Tim Johnson to continue to be our Senator, and I imagine we'll re-elect him in 2008.

Posted by: Steven from South Dakota | January 11, 2007 10:46 AM | Report abuse

Yes, anybody that can't do their job shouldn't receive their salary, but replacements for vacant senate seats should be elected a la Mass.

Posted by: Michael S-R | January 11, 2007 12:14 AM | Report abuse

Yes, anybody that can't do their job shouldn't receive their salary, but replacements for vacant senate seats should be elected a la Mass.

Posted by: Michael S-R | January 11, 2007 12:14 AM | Report abuse

> Bottom line: a Republican is the Governor of SD, he gets to do what he wants. Don't like it? Try and get a Dem elected.

We did. That's the point. The people of SD voted to have a Democratic senator this time around. Get it?

Posted by: Anonymous | January 10, 2007 10:15 PM | Report abuse

I am just glad that Senator Johnson gives the Democrats a reason to keep vegetables alive!

Posted by: DeeDee | January 10, 2007 9:50 PM | Report abuse

I wonder if any question about amending the constitution would have arisen if Sen. Johnson was a Republican? Perhaps a compromise could be had if a constitutional amendment of this nature could be passed applicable only to Democrats!
The Republicans are crying for fairness to the minority. In other words, they are saying, "don't do to us what we did to you for 12 years!"
Arrogance personified!!!

Posted by: LLS | January 10, 2007 8:10 PM | Report abuse

Question: How do you stop this President from his flagrant disregard of the American people?

Question: Do you think this 110th Congress will take the strong initiative to halt this President?

Thus far, all that I have seen and heard is a lot of whoop-a-lah.

I think the American people are getting tired of this whoopalah.
They want action. The Democrats had better produce something besides verbosity. Action is needed now.

Posted by: bomar1224 | January 10, 2007 6:29 PM | Report abuse

Glover Park:

It could be correct for you to say that the people of South Dakota elected Tim Johnson because he is Tim Johnson. But in that case, it makes it wrong for the Governor of SD to appoint a Republican just because that person is a Republican. Same argument. The people should be able to choose the person. First of all, though, he shouldn't be forced to resign.

Posted by: star11 | January 10, 2007 5:29 PM | Report abuse

Things need to change. The Senate is rapidly becoming a geriatric ward and it is not out of the question that several of these folks could be out of commission for years

The Senate must be the only job in the USA that will retain you on the payroll even when you are completely unable to perform your job and there is no expectation of a recovery. ( I am not inventing this because history gives us several examples of long term incapacity without a resignation or replacement). Our times are too important to allow a person to be absent for a period of years!

Posted by: pete | January 10, 2007 5:19 PM | Report abuse

This "Wag the Blog" interactive web feature shows great potential for quickly outlining the best arguments both for and against a particular legislative proposal. Perhaps your pollsters could mine gold from querying readers which side they generally agree with, then asking which arguments from both sides they find most persuasive/troubling/important. Value added by fairly summarizing such concerns and counterarguments when the total is analyzed and presented as a "Fix" summary of work product by the vox populi.

To the issue, I side with opponents to a change. It's a minor issue to consider using the bluntest tools available, i.e. reducing the constitution to the level of a signing statement almost.

And add this additional legal wrinkle. What if a senator is "disabled" and removed, what financial consequences to family? The person was duly elected for 6yrs at salary and medical benefits, at what point did they accrue and should they be continued even if a new office-holder is appointed? Who picks up the tab? Though it seems fair Congress should pay the incapacitated for the term, and the new person acting... since when does 101 senators fit into the pay structure? Assuming the Supreme Court may side with such a construct and established the precedent of double pay, what might stop a small state from serially creating and disabling a series of legislators now appointed senators with financial benefits ad infinitum? Small concern, admitted, but the rule of unintended consequences as usual looms large. Great question for a (Georgetown or George Mason) moot court.

Posted by: Kevin from Kansas | January 10, 2007 5:14 PM | Report abuse

Seems like we need a Living Wills for Senators now. " As a responsible statesmen, If I becoming incapable of performing by daily duties, and w/o resonable expectation to return to duty within XX days at a coherent level, I shall resign my position effective immediately with a replacement decided in accordance with State Constitution laws. HOWEVER, since my State's constitution grants the Governer the sole vote in determing representation, I will only RESIGN if he appoints a person nominated by my Policial Party from my State's Senate, or agree's to a State Ellection. ELSE I remain the duly elected senator from STATE until my term expires.

Posted by: cperks | January 10, 2007 5:12 PM | Report abuse

I think he is a stupid bastard and should be put in prison for this.

Posted by: anonymous | January 10, 2007 5:02 PM | Report abuse

You're not serious, are you? With what is on the line here, do you honestly think that this is ripe for dispassionate debate?

Posted by: Joe T. | January 10, 2007 4:56 PM | Report abuse

You're not serious, are you?

Posted by: Joe T. | January 10, 2007 4:53 PM | Report abuse

star11,

For having never met me, you seem to know me quite well.

For the record, I used to be a Democrat, but now I am an Independent.

It has nothing to do with fairness. The people of South Dakota didn't elect Tim Johnson because he's a Democrat. They elected him because he's Tim Johnson. Nor did they cast a blind ballot for a Democrat and Tim Johnson was selected sometime later. It's a distinction that clearly you, and many others, fail to grasp.

Posted by: Glover Park | January 10, 2007 4:33 PM | Report abuse

'That being said, I wish the Democrats would be more upstanding and take the higher road and allow the House Republicans a voice. I hardly think that their example would be followed when they become the majority again.'

Whoops - meant to make it clear 'when the Republicans become the majority again.'

Posted by: star11 | January 10, 2007 4:27 PM | Report abuse

drindl:

CNN actually had some coverage of Richardson's trip today - I wish there was more - why - I think Brad Pitt made a trip there and there was more overage.

I don't know what he can do, but one can hope that this terrible chapter will come to a close sometime soon. Bush's lack of response is shameful.

Posted by: star11 | January 10, 2007 4:24 PM | Report abuse

'Does anyone here who thinks that Gov. Rounds should appoint a Democrat should the need arise, rationally think that if the trables were turned that a Democratic Governor should appoint a Republican to fill a GOP seat?'

Glover Park: Absolutely a Democratic Governor should be required to appoint a Republican Senator if the seat vacated was held by a Republican. What is fair for one is fair for the other. You sound very bitter about losing the Senate majority. You are the one who sounds as though you are hoping for the need to fill his seat. If you want a Republican majority in the Senate, you had better hope that things turn around in the next couple of years because if they don't, you will just lose more seats.

The problem with politics, on both sides, is that there isn't any sense of fairness any more - whether that is allowing the minority party a voice on the House floor or name anything else the Republicans are accusing the Democrats of - the Republicans were guilty of all of them when they were in power and its not right to be such babies just because they lost the majority.

That being said, I wish the Democrats would be more upstanding and take the higher road and allow the House Republicans a voice. I hardly think that their example would be followed when they become the majority again. Notice there haven't been any calls to ban the filibuster by the Democrats - I hope it stays that way.

What happened to fairness?

Posted by: star11 | January 10, 2007 4:20 PM | Report abuse

Momma always said:
"Don't pick at it, you'll make it worse."

Posted by: dj | January 10, 2007 4:10 PM | Report abuse

Jim Bunning, Pete Domenici and Orrin Hatch have all been reported to have had some pretty severe "senior moments" in recent years. No one has ever heard Wayne Allard or Herb Kohl actually speak.

Who, exactly, determines what defines incompetent?

Posted by: Jim | January 10, 2007 4:07 PM | Report abuse

Keep it simple. The voters elect someone to office, and there he stays until his term expires, he dies or resigns, or the Senate votes not to seat him. Otherwise, who's to say that a Republican governor won't win in West Virginia in 2010, decide that Sen. Byrd has been around long enough, and name himself as the replacement. Or maybe some state supreme court, stacked by a political landslide, will have to decide whether the sitting Senator is compos mentis, or non. Did we learn nothing from the craziness of Bush v. Gore about what happens when the other branches of government get into the mix?

Posted by: Alden | January 10, 2007 4:03 PM | Report abuse

To make my earlier post more clear on this subject. The living will and power of attorny part would, I think probably be limited to a fairly short period of time and the person would not be able to cast votes in the senate, and only to have the power of resigning and medical treatment. This is a very good question and I am sure many different opinions are out there in the public.

Posted by: lylepink | January 10, 2007 3:58 PM | Report abuse

No. Reasons:

1. This is a state issue.
2. The executive branch is led by one person, the president, and there must always be someone functioning in this role. The Senate is a body that can continue to function with one or more members missing.
3. Determining when a senator is "unable to perform legislative duties" is messy. Who decides this? State courts? Federal courts? State legislature? State governor? Senate? President? The incapacitated senator? And what precisely is the standard by which we measure inability? Regardless of the procedure laid out, there will be disputes, and by the time all of the bickering and fighting is resolved, the senator's term will probably be expired anyway.
4. If we establish this for senators, ought we also not do the same for representatives? Yes, members of Congress only have two-year terms, meaning that the person could be replaced much sooner than a senator near the start of a six-year term, but what about small states with only one representative? An incapacitated senator still leaves them with one person actively representing the state in the Senate, whereas an incapacitated representative leaves the state with no representation at all, which is especially bad since the House is primarily responsible for federal budget decisions.
5. The current 25th Amendment is even an awkward procedure for determining incapacity. Either the president has to be dead or resigned, or else the president has to provide in writing for the temporary transfer of power, or else the majority of the cabinent has to agree that the president is incapacitated. And if this latter option results in a power struggle, then the matter goes to Congress to decide. While this political drama might be necessary in order to have a functioning executive branch, going through a similar process with a senator would bring much of the same trauma with very few benefits since the Senate would already be functioning as a body in the one senator's absence.

Posted by: blert | January 10, 2007 3:56 PM | Report abuse

RMill -- I haven't heard a WORD about darfur and Richardson. I guess the press doesn't think genocide is very important. I have seen a lot about Britney and Paris though.

Posted by: drindl | January 10, 2007 3:51 PM | Report abuse

Your proposed question is whether a Senator's seat should be declared vacant if he or she becomes incapacitated. Assuming you mean "permanently vacant," that situation cannot be logically compared to what the 25th Amendment is designed to address. That amendment specifically provides that the Vice-President is to become the ACTING President, and thus contemplates the TEMPORARY nature of the President's incapacity. This is further confirmed by the mechanism whereby the President may be reinstated if his later certification of capacity is not contested.

If there were a constitutional amendment along the lines you suggest, the question of a Senator's "incapacity" would become a political issue, especially in Senator Johnson's situation where Senate control is at stake. Moreover, such an amendment, as worded, makes no sense without further provisions regardidng how an "incapacity" is determined, by whom, etc.

This issue is another example of the needless hype surrounding Senator Johnson's illness.

Posted by: Ted Ross | January 10, 2007 3:44 PM | Report abuse

Further, let's dispell the myth that the people of South Dakota voted for a Democrat first and Tim Johnson second. NO> They voted for Johnson because of the truism uttered so long ago by Tip O'Neill that all politics is local.

It's not like people cast their ballot based on party and then a bunch of people get together and decide who will go to Washington. Those of you advocating that Rounds appoint a Democrat seem to be under that misaprehension.

Sorry boys and girls. If you want Gov. Rounds to appoint someone else you have EXACTLY TWO CHOICES:

1) Elect a Democratic Governor.

2) Change state law.

Until either one of those things comes true, quit whinning.

Posted by: Glover Park | January 10, 2007 3:43 PM | Report abuse

Further, let's dispell the myth that the people of South Dakota voted for a Democrat first and Tim Johnson second. NO> They voted for Johnson because of the truism uttered so long ago by Tip O'Neill that all politics is local.

It's not like people cast their ballot based on party and then a bunch of people get together and decide who will go to Washington. Those of you advocating that Rounds appoint a Democrat seem to be under that misaprehension.

Sorry boys and girls. If you want Gov. Rounds to appoint someone else you have EXACTLY TWO CHOICES:

1) Elect a Democratic Governor.

2) Change state law.

Until either one of those things comes true, quit whinning.

Posted by: Glover Park | January 10, 2007 3:42 PM | Report abuse

Does anyone here who thinks that Gov. Rounds should appoint a Democrat should the need arise, rationally think that if the trables were turned that a Democratic Governor should appoint a Republican to fill a GOP seat?

The HONEST answer is that YOU DON'T. You all are just more concerned with protecting a razor-thin Democratic majority and are willing to bend, abuse, break, etc. the rules to make that happen.

Congrats. In doing so you all have become the one thing you hate the most: a Republican.

Posted by: Glover Park | January 10, 2007 3:35 PM | Report abuse

Since we are talking about other important issues...
What about US Envoy and New Mexico Governor Bill Richardson brokering a cease fire in Darfur.

CC- add that to the resume. Expect an announcement of his intentions to run for President shortly after returning from the Sudan.

Posted by: RMill | January 10, 2007 3:33 PM | Report abuse

Since we are talking about other important issues...
What about US Envoy and New Mexico Governor Bill Richardson brokering a cease fire in Darfur.

CC- add that to the resume. Expect an announcement of his intentions to run for President shortly after returning from the Sudan.

Posted by: RMill | January 10, 2007 3:33 PM | Report abuse

if the people that work for the congress people are tested to make sure that they can be trusted with out nations work...


shouldn't the Congress People have to pass some competency exam and an intelligence reveiw not limited to IQ... Should they not have to maintain that clearance once it is granted in order to maintain office...


just like any NAVY, FBI, ARMY, AIRFORCE, CIA, Secret Service, computer operator , database person, parking lot attendant, security guard, FAA, bank personell that work on computers, contractors that work for those agencies, and heck half of the steet people in certain parts of the city are plain clothes...etcetera?

Posted by: the point is | January 10, 2007 3:30 PM | Report abuse

Have the constitution changed to where the Senator would be removed if determined to be incapacitated by the courts and replaced by an individual from the same party in that state.

Posted by: Bill Cook | January 10, 2007 3:29 PM | Report abuse

if the people that work for the congress people are tested to make sure that they can be trusted with out nations work...


shouldn't the Congress People have to pass some competency exam and an intelligence reveiw not limited to IQ... Should they not have to maintain that clearance once it is granted in order to maintain office...


just like any NAVY, FBI, ARMY, AIRFORCE, CIA, Secret Service, computer operator , database person, parking lot attendant, security guard, FAA, bank personell that work on computers, contractors that work for those agencies, and heck half of the steet people in certain parts of the city are plain clothes...etcetera?

Posted by: the point is | January 10, 2007 3:28 PM | Report abuse

Amend ONLY if there is language that the Senator be replaced by a member from his own party. It's what the voters of that state voted for, and illness or death should not leave the Governor of the opposite party with the ability to change the will of the voters.

Posted by: MikeBaseball | January 10, 2007 3:25 PM | Report abuse

Andf speaking of more important things--let's go back to 2008 for a moment. This evening bush is going to try to persuade us that escalating the Iraq war--and throwing more of our troops on the bonfire -- is a good idea.

I think Chris should make it a point to ask every single candidate who is considering running for president, what would you do in bush's place? Do you think this 'surge' or 'bonk' or whatver it is, is a good idea? No ducking, no dodging, no bobbing and weaving. Give us a straight answer.

If the press had done its job and asked tough questions beofre the 2000 or 2004 elections, we might not be in this mess now.

Posted by: drindl | January 10, 2007 3:22 PM | Report abuse

really, the people that surround the senators and representatives that go shopping with you at the malls...


about 60 PerCent have TS EBI's w/poly...


wouldn't you like to know that your congress person or Secretary of State had not been consorting w/the enemy?

February 21, 2006 -- The Houses of Bush, Sabah, and Maktoum. The Bush Crime Family's close business dealings with the royal houses of Kuwait (the Sabah family) and Dubai (the Maktoum family) either borders on or is treason according to information received from U.S. military and Persian Gulf sources by WMR.

The Sabah family and their business cohorts are reportedly skimming hundreds of millions of dollars from the shipping of military materiel through Kuwait to U.S. forces in Iraq. Moreover, much of this money is being used to fund the Sunni insurgency in Iraq that is directed against U.S. troops. In 1993, former President George H. W. Bush was awarded an honorary doctorate by Kuwait University and Kuwait's highest honor, the Order of Mubarak the Great. Bush was accompanied on a Kuwait Airways flight by his sons Neil and Marvin and former Secretary of State James Baker III, former chief of staff John Sununu, and Joint Chiefs Operations Director Gen. Thomas Kelly. After the trip, Neil landed lucrative contracts with the Kuwaiti Ministry of Electricity and Water. Marvin secured defense contracts for his clients. Baker nailed down deals for Enron.

Marvin Bush, George W. Bushes brother, served on the board of Securacom (renamed Stratesec), which had contracts to provide security for Dulles Airport and the World Trade Center on September 11, 2001. Securacom's backers included a number of Kuwaitis through a company called KuwAm Corp (Kuwaiti-American Corp.). KuwAm also financially backed Aviation General, formerly Commander Aircraft, which brokered the sale of airplanes to the National Civil Aviation Training Organization (NCATO), located in Giza, Egypt, the hometown of lead hijacker Mohammed Atta and the only civilian pilot training school in Egypt. NCATO has a training agreement with Embry-Riddle University in Daytona Beach, Florida, the flight school that was investigated by the FBI for possibly training at least one of the 911 hijackers.

Posted by: look, | January 10, 2007 3:14 PM | Report abuse

> Bottom line: a Republican is the Governor of SD, he gets to do what he wants. Don't like it? Try and get a Dem elected.

We did. That's the point. The people of SD voted to have a Democratic senator this time around. Get it?

Posted by: Anonymous | January 10, 2007 3:13 PM | Report abuse

Not to belittle or undermine the importance of elected leadership but the truth is that the day-to-day functions of the office of a United States Senator continue whether he is there or not. Mail and constituent work, meetings with staff, legislation, committee work and issue research all under the direction of the chief of staff. What is missing is the votes on the floor and attendance in committees.

Altering the constitution is almost never a good answer. The real problems are the myriad of differing state rules about when a special election is held. And the occurance of such situations is extremely rare and as put by others, still only one of a body of 100, unlike the presidency.

Amend the constitution, no. Proceed with the court of public opinion or the next ballot box and let the people decide if their interests have been best served.

Posted by: RMill | January 10, 2007 3:12 PM | Report abuse

Why don't you people get a life? Change the constitution? That's just stupid.

Our forefathers were a lot wiser than people give them credit for. The constitution was written to provide freedoms for our citizens, with ammendments difficult to make, for basically this specific reason... ie: not changing rules to fit the agenda of the ruling party. It is blatantly obvious to me with the feeding frenzy that is surrounding Tim's situation, that everyone, on either side of the issue, is more concerned with the balance of power than they are with the health & well being of a fellow human being and his family. Just shows the MAJOR lack of respect we Americans show for each other.
There are many examples, from both parties, which support just leaving things as they are. The most appropriate example, in my opinion, and ironically occurred in my beautiful home state of SD, the late Sen Karl Mundt. Many today are too young to remember his situation, however it has many strikingly similar facets to Sen Johnson's situation. Sen Mundt too, suffered a stroke while in office, unfortunatlely more severe than Tim. He was completely incapacitated, yet served out the final, I believe, 3 yrs of his term, not casting a single vote at all in that time. His staff handled the day to day stuff admirably, and all went well. No frenzy over getting him out of office, nor the balance of power or anything??? Why not? People had respect for each other, didn't concentrate on their personal agendas, rather concentrated more on keeping our country together during a very volatile time in our history. Gee, do ya think that might work again????????? Think about it would ya?
We have more important things to be concerned about in our country than this issue. It's time to concentrate on the entire forest rather than just 1 tree within it.

Posted by: portsidebob/SouthDakotan | January 10, 2007 3:07 PM | Report abuse

Offhand thought about the "living will" concept, which should probably be explored further at some point, as well as the subject of "vice senators." There is someone, selected by the senator, who could very easily step in and come relatively close to carrying out the senator's will should he or she be incapacitated temporarily: the chief of staff (or whatever they choose to call their top advisor.)

It would make sense, to me, in the event of an incapacitation or an unavoidable absence, that the chief of staff could be empowered to act on their senator's behalf on the floor. It's more likely to ensure a similar voting pattern than having a governor or state legislature select a replacement, ensures an interest in politics for the interim senator, which the proposed "Carnahan Rule" cannot, and if a special election (the best option) cannot take place, this seems a good substitute.

Posted by: dilbert719 | January 10, 2007 2:58 PM | Report abuse

I say with the condition of the new senator being appointed from the same party controlling the seat, and only temporarily until the ailing senator is able to take the reigns of the seat once again. A qualified yes.

Posted by: Long Beach, CA | January 10, 2007 2:58 PM | Report abuse

Willie G

I think you may have misread the South Dakota statutes.


12-11-4. Temporary appointment by Governor to fill vacancy in United States Senate. Pursuant to the Seventeenth Amendment to the Constitution of the United States of America, the Governor may fill by temporary appointment, until a special election is held pursuant to this chapter, vacancies in the office of senator in the Senate of the United States.

12-11-5. Special election to fill senate vacancy. The special election to fill the vacancy of a senator shall be held at the same time as the next general election. The general election laws shall apply unless inconsistent with this chapter.
(There will be a general election in South Dakota in Nov. 2008).

12-11-6. No special election if appointed senator's term expires at normal time. No special election, to fill a vacancy, may be held if the term of office of the appointed senator expires in the month of January immediately following the next general election that would occur after the vacancy. (Johnson's term expires Jan. 2009, immediately following the next general election and so no special election is called for).

12-11-7. Vacancy within ninety days of general election--Concurrent elections. If a vacancy occurs within ninety days of the next general election, the special election to fill the vacancy shall be held concurrently with the general election to be held two years later.

Posted by: RMill | January 10, 2007 2:55 PM | Report abuse

I hope and pray for Sen. Johnson's full recovery.

Let's have this discussion of a vacancy sometime AFTER Sen. Johnson has missed more votes than Sen. ________ (insert name of candidate for President '08) who is out on the hustings raising money for their candidacy.

Posted by: Roger Clairmont | January 10, 2007 2:54 PM | Report abuse

We wouldn't think it was fair to fire anyone else because they were temporarily out on sick leave. Why should it be fair for senators?

Posted by: susan | January 10, 2007 2:52 PM | Report abuse

When a senator is not able to cast a vote, there should be a vice senator.... or the vote could go to the gov. I wonder if more real work would get done if there was an extra person to do the real work that should be being done...

Posted by: Chris | January 10, 2007 2:48 PM | Report abuse

What constitutes incapacity? Wasn't Strom Thurmond "incapacitated" even though he occasionally was wheeled into the Senate to read from cue cards?

Posted by: Bob | January 10, 2007 2:46 PM | Report abuse

G.W.Bush has never been "able" (see willing) to live up to the his oath of office to "protect and defend" the constitution. Why should a "sitting" U.S.Senator be any different?

Posted by: Blue Tarp Nation | January 10, 2007 2:44 PM | Report abuse

I've seen on other venues the sentiment that Good christians(as opposed to mediocre ones) should not pray for Senator Johnson's recovery because returning the Senate from non-christian elements(Schumer, Levin) would not only preserve life but fulfill the Lord's(Cheney?) will.

I heard Pat Robertson say with a smile (or indigestion) we should all pray for Johnson's recovery even though his demise would lead to the right people retaking the Senate. (Extra duty smirk--big time).

Since the Baltimore Sun my local paper rid itself of Thomas Friedman & Jules Witcover, their most moderate non-minority columnist is Cal Thomas whose post election analysis was the voters were wrong and should be ashamed of themselves.

Linda Chavez opined, IIRC, that Karl Rove was having a mid season slump and losing the Scooter was a major distraction. Which is true, I thought the GOP in Maryland would exploit Cardin's relative's Jerome involvement in the Old Court scandal, the Cardin's family's past ownership of downtown real estate in the days of segregation and the unfortunate suicide of a son, usually red meat for GOP attack dogs. It was a civil campaign, Democrats ignored the fact that Steele was endorced by two felons, Mike Tyson and Don King. Nevertheless his defeat ended Steele's chance to be the 2008 VP nominee.
I think the former Lt. Gov. is now on a short list to be a K&G menswear spokesmen. He is a snappy dresser.

Posted by: "Yellow Dog" Rosenberg | January 10, 2007 2:41 PM | Report abuse

I've seen on other venues the sentiment that Good christians(as opposed to mediocre ones) should not pray for Senator Johnson's recovery because returning the Senate from non-christian elements(Schumer, Levin) would not only preserve life but fulfill the Lord's(Cheney?) will.

I heard Pat Robertson say with a smile (or indigestion) we should all pray for Johnson's recovery even though his demise would lead to the right people retaking the Senate. (Extra duty smirk--big time).

Since the Baltimore Sun my local paper rid itself of Thomas Friedman & Jules Witcover, their most moderate non-minority columnist is Cal Thomas whose post election analysis was the voters were wrong and should be ashamed of themselves.

Linda Chavez opined, IIRC, that Karl Rove was having a mid season slump and losing the Scooter was a major distraction. Which is true, I thought the GOP in Maryland would exploit Cardin's relative's Jerome involvement in the Old Court scandal, the Cardin's family's past ownership of downtown real estate in the days of segregation and the unfortunate suicide of a son, usually red meat for GOP attack dogs. It was a civil campaign, Democrats ignored the fact that Steele was endorced by two felons, Mike Tyson and Don King. Nevertheless his defeat ended Steele's chance to be the 2008 VP nominee.
I think the former Lt. Gov. is now on a short list to be a K&G menswear spokesmen. He is a snappy dresser.

Posted by: "Yellow Dog" Rosenberg | January 10, 2007 2:40 PM | Report abuse

I've seen on other venues the sentiment that Good christians(as opposed to mediocre ones) should not pray for Senator Johnson's recovery because returning the Senate from non-christian elements(Schumer, Levin) would not only preserve life but fulfill the Lord's(Cheney?) will.

I heard Pat Robertson say with a smile (or indigestion) we should all pray for Johnson's recovery even though his demise would lead to the right people retaking the Senate. (Extra duty smirk--big time).

Since the Baltimore Sun my local paper rid itself of Thomas Friedman & Jules Witcover, their most moderate non-minority columnist is Cal Thomas whose post election analysis was the voters were wrong and should be ashamed of themselves.

Linda Chavez opined, IIRC, that Karl Rove was having a mid season slump and losing the Scooter was a major distraction. Which is true, I thought the GOP in Maryland would exploit Cardin's relative's Jerome involvement in the Old Court scandal, the Cardin's family's past ownership of downtown real estate in the days of segregation and the unfortunate suicide of a son, usually red meat for GOP attack dogs. It was a civil campaign, Democrats ignored the fact that Steele was endorced by two felons, Mike Tyson and Don King. Nevertheless his defeat ended Steele's chance to be the 2008 VP nominee.
I think the former Lt. Gov. is now on a short list to be a K&G menswear spokesmen. He is a snappy dresser.

Posted by: "Yellow Dog" Rosenberg | January 10, 2007 2:40 PM | Report abuse

I've seen on other venues the sentiment that Good christians(as opposed to mediocre ones) should not pray for Senator Johnson's recovery because returning the Senate from non-christian elements(Schumer, Levin) would not only preserve life but fulfill the Lord's(Cheney?) will.

I heard Pat Robertson say with a smile (or indigestion) we should all pray for Johnson's recovery even though his demise would lead to the right people retaking the Senate. (Extra duty smirk--big time).

Since the Baltimore Sun my local paper rid itself of Thomas Friedman & Jules Witcover, their most moderate non-minority columnist is Cal Thomas whose post election analysis was the voters were wrong and should be ashamed of themselves.

Linda Chavez opined, IIRC, that Karl Rove was having a mid season slump and losing the Scooter was a major distraction. Which is true, I thought the GOP in Maryland would exploit Cardin's relative's Jerome involvement in the Old Court scandal, the Cardin's family's past ownership of downtown real estate in the days of segregation and the unfortunate suicide of a son, usually red meat for GOP attack dogs. It was a civil campaign, Democrats ignored the fact that Steele was endorced by two felons, Mike Tyson and Don King. Nevertheless his defeat ended Steele's chance to be the 2008 VP nominee.
I think the former Lt. Gov. is now on a short list to be a K&G menswear spokesmen. He is a snappy dresser.

Posted by: "Yellow Dog" Rosenberg | January 10, 2007 2:40 PM | Report abuse

I've seen on other venues the sentiment that Good christians(as opposed to mediocre ones) should not pray for Senator Johnson's recovery because returning the Senate from non-christian elements(Schumer, Levin) would not only preserve life but fulfill the Lord's(Cheney?) will.

I heard Pat Robertson say with a smile (or indigestion) we should all pray for Johnson's recovery even though his demise would lead to the right people retaking the Senate. (Extra duty smirk--big time).

Since the Baltimore Sun my local paper rid itself of Thomas Friedman & Jules Witcover, their most moderate non-minority columnist is Cal Thomas whose post election analysis was the voters were wrong and should be ashamed of themselves.

Linda Chavez opined, IIRC, that Karl Rove was having a mid season slump and losing the Scooter was a major distraction. Which is true, I thought the GOP in Maryland would exploit Cardin's relative's Jerome involvement in the Old Court scandal, the Cardin's family's past ownership of downtown real estate in the days of segregation and the unfortunate suicide of a son, usually red meat for GOP attack dogs. It was a civil campaign, Democrats ignored the fact that Steele was endorced by two felons, Mike Tyson and Don King. Nevertheless his defeat ended Steele's chance to be the 2008 VP nominee.
I think the former Lt. Gov. is now on a short list to be a K&G menswear spokesmen. He is a snappy dresser.

Posted by: "Yellow Dog" Rosenberg | January 10, 2007 2:40 PM | Report abuse

It seems reasonable that if a member of Congress who is incapacitated for an extended period of time, then he or she should be replaced to provide the constituents representation. That being said, how long is an appropriate period of time? As I recall, Joe Biden was unable to perform his duties as a Senator for about seven months while he recovered from an aneurism. Do the citizens of Delaware feel short changed because of his lengthy absence? Apparently not, considering he's been reelected 3 times since it happened.

So, there we have a standard of seven months being an acceptable length of time for a Senator to be out of commission. Maybe the answer is a year.

Posted by: John | January 10, 2007 2:34 PM | Report abuse

I think Jan has a relevant point about the quality of senators. It doesn't make much difference if they are there every day if they don't know what they are doing -- or they have chosen to deliberately try usurping the Consitution.

Even though they are chosen by voters of their state of residence, Senators work for all of us -- and incompetent or malicious ones hurt all of us.

Perhaps a certain level of literacy, competence and familiarity with constitutional law should be mandatory. We ask doctors and lawyers, after all to pass proficiency exams -- and a senator can do a lot more damage.

Posted by: drindl | January 10, 2007 2:31 PM | Report abuse

As noted previously, the Constitution should not be amended for such trivial exigencies. The only new constitutional amendment regarding Congress should involve term limits.

Posted by: Anonymous | January 10, 2007 2:31 PM | Report abuse

Geez, I can't believe you even raise this and try to make it an issue, which it is not. I am sorry, Chris, but I think this reflects really poor taste on your part -- and a bit of a dark ugly streak, as well. I suggest you direct the blog to real issues.

Posted by: Gale | January 10, 2007 2:29 PM | Report abuse

Just a couple things to mull over:

First, this project on the Post's website shows how many votes each Senator in the previous Congress missed. Some of them missed enough to qualify as "not doing their jobs" by some people though of course what's a little misleading is the lack of mention that most votes are passed by such a wide margin that a few non-voting members don't make a difference. And since the party whips typically know the outcome of the vote before it starts, it's almost never the case that a Senator misses a 50-50 or 51-49 vote. Here's the link: http://projects.washingtonpost.com/congress/109/senate/vote-missers/

Second, to address Loudon's question: South Dakota actually has TWO competing statutes one of which provides for a special election in 80-90 days after a vacancy is declared and one that states the election will occur at the time of the next general election, i.e., 2008. Here's that statute:

http://legis.state.sd.us/statutes/DisplayStatute.aspx?Type=Statute&Statute=12-11-5

Posted by: Willie G | January 10, 2007 2:28 PM | Report abuse

Geez, I can't believe you even raise this and try to make it an issue, which it is not. I am sorry, Chris, but I think this reflects really poor taste on your part -- and a bit of a dark ugly streak, as well. I suggest you direct the blog to real issues.

Posted by: Gale | January 10, 2007 2:26 PM | Report abuse

Just a couple things to mull over:

First, this project on the Post's website shows how many votes each Senator in the previous Congress missed. Some of them missed enough to qualify as "not doing their jobs" by some people though of course what's a little misleading is the lack of mention that most votes are passed by such a wide margin that a few non-voting members don't make a difference. And since the party whips typically know the outcome of the vote before it starts, it's almost never the case that a Senator misses a 50-50 or 51-49 vote. Here's the link: http://projects.washingtonpost.com/congress/109/senate/vote-missers/

Second, to address Loudon's question: South Dakota actually has TWO competing statutes one of which provides for a special election in 80-90 days after a vacancy is declared and one that states the election will occur at the time of the next general election, i.e., 2008. Here's that statute:

http://legis.state.sd.us/statutes/DisplayStatute.aspx?Type=Statute&Statute=12-11-5

Posted by: Willie G | January 10, 2007 2:26 PM | Report abuse

If we're going to amend the US Constitution, I would perfer to amend it so that Senators must have a degree in US Constitutional Law. Bill Frist the Doctor tried to pass bills that were blatantly unconstitutional, and I think that threat is more harmful to us as a nation than one Senator becoming incapacitated.

Posted by: Jan | January 10, 2007 2:24 PM | Report abuse

Geez, I can't believe you even raise this and try to make it an issue, which it is not. I am sorry, Chris, but I think this reflects really poor taste on your part -- and a bit of a dark ugly streak, as well. I suggest you direct the blog to real issues.

Posted by: Gale | January 10, 2007 2:23 PM | Report abuse

This is a state issue. They elect their Senators. If states want to amend their own Constitutions to reflect the idea of a renominating process due to illness, etc, than they are free to offer a referendum on their state ballot to do so. Until then, the US Constitution reigns.

Posted by: Shaun | January 10, 2007 2:22 PM | Report abuse

If we're going to amend the US Constitution, I would perfer to amend it so that Senators must have a degree in US Constitutional Law. Bill Frist the Doctor tried to pass bills that were blatantly unconstitutional, and I think that threat is more harmful to us as a nation than one Senator becoming incapacitated.

Posted by: Jan | January 10, 2007 2:17 PM | Report abuse

feel that as a minimum Congress People who break laws that would cause a person to lose their clearance...


should lose their seat and only be reinstated after being found innocent...


just like your civilian and military folk would be....


do you think just because you all are riche that you should be excused DWIs or SEC Fraud?

Posted by: I | January 10, 2007 2:08 PM | Report abuse

Personally believe and would like all people who pass laws to obey them...


and be able to stand up to scrutiny...


the average grunt that works on computers for Congress people has had a more extensive background check than your average congress person...


I believe that should change...


you know like Secret Level EBI W/Poly...


dont you agree? I think America needs Congress people that can do something besides con, redirect an issue and talk about gay marriage as if it mattered....

..

Posted by: I | January 10, 2007 2:04 PM | Report abuse

My comment is if it has worked up until now, why "fix" it? No need for us to start toying with the consititution, especially in these politically charged times.

Besides, if the Gentleman is not fully recuperated by election time for his particular seat, the electorate will surely settle the issue.

Posted by: Kansas Dem - Vince | January 10, 2007 2:02 PM | Report abuse

Why is it that the Kennedy family always gets killed but the Bush family, despite their funding of Hitler and I.G. Farben and their close intelligence connections to Gehlen and the bin Laden family never have plane crashes and heart attacks?

Posted by: Paul Wellstone | January 10, 2007 1:59 PM | Report abuse

I believe it should be a STATE law__in every state__ that if the physically or mentally incapable senator does not sufficiently recover within 90 days, then the governor can appoint an "interim senator" to serve in his/her place until he/she does recover or his/her term expires, whichever first.

As to party, it indeed should indeed be the governor's choice. Was the Jeffords action unconstitutional?

Posted by: Greg Nunz | January 10, 2007 1:37 PM | Report abuse

Michigan Mike - Senators are Federal officials, not state officials. They represent their state, but are federal employees. Governors are the "highest" State officials.

Adam - Your pay incentive proposal is interesting.

Posted by: Nor'Easter | January 10, 2007 1:30 PM | Report abuse

Here in Arizona there is a State law that requires the Governor to appoint a person from the same party should any elected official die in office or resign for any reason. This person serves until the next election. To me this seems fair. The next election can decide whether the Governor did the right thing or not. This makes resigning because of incapacity a lot easier to swallow for the involved office holder and, if he/she sufficiently recovers they can always run again in the next election.

Posted by: Ralph Hobe | January 10, 2007 1:29 PM | Report abuse

Michigan Mike - Senators are Federal officials, not state officials. They represent their state, but are federal employees. Governors are the "highest" State officials.

Adam - Your pay incentive proposal is interesting.

Posted by: Nor'Easter | January 10, 2007 1:26 PM | Report abuse

I believe this might be a good idea, but that it be coupled with a provision that either requires a special election to replace the member of Congress or requires that the governor appoint someone of the same party to replace the departing member. I think we should have that policy anyway, so that a senator's death or illness does not become a political opportunity for the other party. While unlikely, I could even see a scenario in which a senator is murdered in order to shift the majority, and a provision requiring replacement by special election or appointment of a member of the same party would eliminate that prospect.

Posted by: Laura | January 10, 2007 1:26 PM | Report abuse

Seems something less drastic should be considered, if anything should actually be done at all. The hysteria to change the constitution for everything from banning gay marriage to banning abortion seems ill advised given the fact that the document has served us so well for so long. I agree that the senator should not have to choose between abdicating his voting responsibilities and handing his seat to a party his constituents did not choose. Perhaps the governor should be obligated to appoint someone from the same party as the incapacitated senator in these circumstances.

Posted by: Yoshi | January 10, 2007 1:24 PM | Report abuse

I'm sure there were debilitating diseases in 1913 when the XVIIth amendment was ratified, and yet Congress and the several states saw no need to include provisions for vacating a Senate seat in such a situation.

As for returning the power of election to the legislatures, I don't know how that would solve the issue at hand. The seat would still not be vacated and, to my knowledge, nothing in Article 1 Section 3 provided for the legislatures to vacate the seat.

The need for the executive to be able to appoint a temporary replacement was due to the fact that state legislatures were not full-time bodies at the time (indeed most still aren't). Now the constitution could have allowed for legislatures to name the temporary successor if they were in session or the executive if they were out of session, but that would be complicated to write given the different laws regarding session of a legislature.

Posted by: texd | January 10, 2007 1:22 PM | Report abuse

The President heads the government and if not able to perform the duties, then they should be transferred to the Vice President. A Senator is a different thing altogether. If we can vote by absentee ballot to elect these people, then members of Congress, if able to vote, but unable to attend, should have the opportunity to vote by absentee ballot.

Posted by: Carole Austin | January 10, 2007 1:13 PM | Report abuse

Who cares if there are 100 Senators, 99, 75 or whatever?
Nothing gets done anyway.

Ricky From Omaha

Posted by: Ricky | January 10, 2007 1:12 PM | Report abuse

America has a great constition. It has worked for over two hundred years. A this new amendment would take away power from the Amercan voters. And therefore it would take rights away from the American people. Changing changing the U.S. Constition is a very dangerous steep to take.

Posted by: sara martindale-raptis | January 10, 2007 1:11 PM | Report abuse

People should let the Senator recuperate and visit these issues at a later time. In 6 months it should be clearer what, if any, of the long term effects of his surgery will be. At that time he (if capable) should ask himself if he is staying in the Senate to preserve the majority or if he is confident that he will be able to return and fulfill his duties.
I like to think that I still have faith that the Senate is a club of gentlemen who will make the appropriate choices for both themselves and the country.

Posted by: Anonymous | January 10, 2007 1:11 PM | Report abuse

People should let the Senator recuperate and visit these issues at a later time. In 6 months it should be clearer what, if any, of the long term effects of his surgery will be. At that time he (if capable) should ask himself if he is staying in the Senate to preserve the majority or if he is confident that he will be able to return and fulfill his duties.
I like to think that I still have faith that the Senate is a club of gentlemen who will make the appropriate choices for both themselves and the country.

Posted by: Anonymous | January 10, 2007 1:10 PM | Report abuse

Who cares if there are 100 Senators, 99, 75 or whatever?
Nothing gets done anyway.

Ricky From Omaha

Posted by: Ricky | January 10, 2007 1:07 PM | Report abuse

NO. Please don't start amending the Constitution for every exigency that causes anyone any angst. You'll never end. The constitution will be as useful as last year's phone book.

Posted by: el | January 10, 2007 1:01 PM | Report abuse

This would not be an issue if we went back to the Founders intent, and let the state legislatures choose senators.

Posted by: Chris | January 10, 2007 12:55 PM | Report abuse

This would not be an issue if we went back to the Founders intent, and let the state legislatures choose senators.

Posted by: Chris | January 10, 2007 12:54 PM | Report abuse

This is an issue between the senator and his constituents. If he is confident his people want him to stay, he should. If the state feels like it is getting left out of the national forum, he should resign, lest he be "resigned" by the voters in the next election. No need to tinker with the Constitution. We will be just fine.

God's Blessing, Senator Johnson!

Posted by: steve | January 10, 2007 12:49 PM | Report abuse

I would argue no. In the case of the 25th Amendment, the President has a Constitutionally-established chain of elected and appointed officials ready to step into his role if he is physically or mentally unable to perform his/her duties, and that chain is well understood not only by those in it, but by the electorate when they elect the President. (We hope.) How many times, in the course of a Presidential election, do we hear discussions of VP candidates in terms of, "Are they able to do the job if they need to?" Voters consider this, and thus sign off on the President's replacement in his time of need.

Senators have no such safety valve - they are elected alone to serve in DC. While a Constitutional amendment similar to the 25th could possibly be drafted, what would be its content? Would the Governor step in? (Too busy.) The senior member of the House delegation? (Ditto, and their replacement procedures aren't uniform either). The Lt. Governor? (Their appointment procedures aren't uniform!) I believe it's too capricious of a system to design around ... unless we just want to formalize the Jean Carnahan Rule and give the position to their spouse.

Posted by: Patrick | January 10, 2007 12:47 PM | Report abuse

I appologize in advance if my comments repeat a sentiment already expressed but I gave up on reading the rest of the commnets since most of them are so ridicoulously unrelated to the topic.

The question is an interesting one, but I think there are two very important distinctions between a Senator and a President.
The First is that the President is a Federal officer while the Senator is a State official. Obviously the Senator works for the federal government but his constituancy is his state and therefor the Federal government has no buissness getting involved. If the state wants to reform its constitution to handle such a case that would be more appropriate.
The second distinction is that the President is an executive. By the nature of that position it is necessary to be at the to p of your game at all times. An executive is in charge and one never knows when a crisis will come up that requires executive decision making. For that reason even if the President is under anesthesia for a couple of hours it is essential that there be a chain of command in place to avoid chaos.
So I guess my answer to your question would be that an amendment to the Federal constitution is unnecessary. This is a state issue and each state should decide how to handle such a situation.

Posted by: Michigan Mike | January 10, 2007 12:43 PM | Report abuse

A special election should always be the answer, not a Constitutional amendment. The Senator, if capable, and his family should make the decision based on Sen. Johnson's ability to serve, not how it affects the majority status. If he decides to resign, the Governor should not be able to name a replacement. The people elected Tim Johnson the man, his party affiliation was secondary. A different Democrat may not be their will either as they elected a Republican governor and senator (Thune). Let the people decide in a special election who their next senator will be. That's called democracy, and it keeps the Republican and Democratic special interests out of it.

Posted by: IndyWasDem | January 10, 2007 12:40 PM | Report abuse

After reading the thousands of words for, against, and "so what", I must agree that "NO" is the best response. It is quite apparent that Republicans want a change that will permit the Governor to replace Tim Johnson with a Republican Senator but have it expire before a Republican Senator met the same fate. An alternative would be to permit the Tim Johnsons to select a proxy for voting on specific bills while in absentia.

Posted by: George Harbin | January 10, 2007 12:32 PM | Report abuse

BLTom5,

Both are good ideas. Particularly changing state laws such that special elections are called to fill Senate vacancies. I can think of no reason not to do that.

Posted by: Jackson Landers | January 10, 2007 12:31 PM | Report abuse

One less senator equals 1% fewer earmarks. Let's hope more get sick.

Posted by: Neal Breitenbach | January 10, 2007 12:28 PM | Report abuse

Question: why didn't CC raise this issue in 2002? Thurmond served until January of 2003. Since he turned 100 in 2002 there was clearly NO hope of 'recovery,' to put it delicately. Johnson's case is dramatically more nuanced and uncertain.

Question: is this a clearly hypocritical, conveniently timed question or not?

Question: is there any good reason to respond to such baited posts?

Posted by: Judge C. Crater | January 10, 2007 12:26 PM | Report abuse

Senators have over the year missed votes, hearings and session for a variety of reasons - from running for higher office to attending to family business. Who decides how long absentia becomes "inability to fulfill duties?" How is it defined, will we just "know it when we see it?" Or maybe it would be easier to just amend the 17th amendment to read as having an age limit? The people who wrote this amendment did the right thing, stipulating that only absolute vacancies are to be filled by a new person -that's the only way to TRULY let people be represented by who they elected, instead of making judgment calls on the democratically elected individual chosen to serve in the Senate on a case by case basis.

-Our electoral process offers opportunities reconsider our representation through our Senators regularly -- and there are 2 Senators from every state, there is still Representation even though one may be gone. Perhaps the question should look at House members who are absent, instead--after all, who is looking after their district while they are not able to vote?

-the Family and Medical Leave Act made it the law to allow for recovery in the case of illness, and said that employers can't take a job from people just because they get sick... Senators should have the same right and Sen. Johnson should be given adequate time to recover. It's only fair.

-Oh, and, by the way, the late Democrat/Dixiecrat/Republican from South Carolina many commenters have previously referred to spelled his name, "Thurmond."

Posted by: SidelineReporter | January 10, 2007 12:22 PM | Report abuse

Lets talk about getting paid. I have long favored a pay formula for senators and reps as follows.

monthly pay = 1/2nominal salary + 1/2nominal salary x (votes made/total votes)

In other words, if you make no votes you get half your salary. It is a blunt tool, but it might help.

Posted by: Adam Hammond | January 10, 2007 12:22 PM | Report abuse

It seems that the 17th Amendment is structured to allow the state in question to determine what constitutes a vacancy and then, if a vacancy has taken place, to hold a special election or let the governor appoint a temporary replacement until the next scheduled election.

This method seems sound and I would therefore oppose a Constitutional amendement. I would also add that I would generally support a special election versus a gubernatorial appointment if the time until the next election is considerable.

Posted by: ANetliner | January 10, 2007 12:20 PM | Report abuse

It seems that the 17th Amendment is structured to allow the state in question to determine what constitutes a vacancy and then, if a vacancy has taken place, to hold a special election or let the governor appoint a temporary replacement until the next scheduled election.

This method seems sound and I would therefore oppose a Constitutional amendement. I would also add that I would generally support a special election versus a gubernatorial appointment if the time until the next election is considerable.

Posted by: ANetliner | January 10, 2007 12:20 PM | Report abuse

It seems that the 17th Amendment is structured to allow the state in question to determine what constitutes a vacancy and then, if a vacancy has taken place, to hold a special election or let the governor appoint a temporary replacement until the next scheduled election.

This method seems sound and I would therefore oppose a Constitutional amendement. I would also add that I would generally support a special election versus a gubernatorial appointment if the time until the next election is considerable.

Posted by: ANetliner | January 10, 2007 12:20 PM | Report abuse

It seems that the 17th Amendment is structured to allow the state in question to determine what constitutes a vacancy and then, if a vacancy has taken place, to hold a special election or let the governor appoint a temporary replacement until the next scheduled election.

This method seems sound and I would therefore oppose a Constitutional amendement. I would also add that I would generally support a special election versus a gubernatorial appointment if the time until the next election is considerable.

Posted by: ANetliner | January 10, 2007 12:19 PM | Report abuse

This is a classic case of offering to change a general principle or law in response to an individual problem. How often does this situation occur? Would the change adjust the fundamental assumptions upon which the senate is established--the autonomy of their representation? If you favor this change my only advise is--be careful what you wish for...

Posted by: Richard Fulton | January 10, 2007 12:16 PM | Report abuse

I say no, because, in situations like we have now, it could shift the power in the Senate. One senator's temporary disability should not be allowed to create such a drastic change in government -- even temporarily.

http://commenterry.blogs.com

Posted by: Terry Mitchell | January 10, 2007 12:15 PM | Report abuse

The major problem with enacting an amendment similar to the 25th is that there is no logical person to serve in the place of an incapacitated senator. In the case of the VP, citizens voted for him/her on the ticket with the knowledge that they would take over the duties of the President in the event of serious illness. To equate that process with the temporary replacement of a senator, which would come as an appointment by the state's Governor, is entirely unreasonable. Additionally, as has already been stated, the 25th is in place because an executive is necessary for almost anything to happen in our union, if the country could be run without an acting president as well as it could without a senator, there would be no need for the 25th. One senator missing may impede the legislative process for some bills, but if a vote is going to be close enough that one vote will make the difference, in this era of political divisivness, maybe it needs more work to form a solution that is satisfactory to more than half of the senators. Although Sen. Johnson's absence will likely hinder the Democrats' ability to pass some legislation I support, there is no reason to amend the Constitution to find a temporary replacment.

Posted by: Chris--Oakland, CA | January 10, 2007 12:14 PM | Report abuse

No, to answer the question.

To elaborate, particularly in the US Senate, where the terms are 6 years, and the body is supposed to be primarily deliberative, a month or two due to injury or illness is a drop in a bucket.

Further, it would further rive our political process, and create a situation where the passions of the moment cloud judgment. There is too much room for abuse to amend the Constitution over an issue that arises every decade or so.

Posted by: Steve | January 10, 2007 12:14 PM | Report abuse

I don't think it was a silly question, unless someone was, as is increasingly becoming the case in our partisan world, inclined NOT to think. My own thought, without taking into account the current 51-49 mix or Sen. Johnson's party affiliation, is that no amendment is required, or for that matter, preferable.

Senators miss votes for all kinds of reasons, not the least of which are quixotic efforts to win the presidency. As long as a quorum is present, the legislative body functions as is constitutionally ordained. There is no crisis in that context. While one can posit a crisis of the moment given the partisan appetites of the moment, a constitutional amendment is the wrong tool for the job. The oath taken by the senator and the voters power at the ballot box assure that such a situation never rises to the level of constitutional crisis.

Rich Evans
Orlando

Posted by: Rich Evans | January 10, 2007 12:12 PM | Report abuse

Did anyone accuse Strom Thurmond of performing his duties in office during the final years he was Senator? Under this scenario, that seat should have been declared vacant while he was still sitting in it! The governor of South Dakota should do the right thing and offer to appoint a Democrat to Senator Johnson's seat if he wishes to resign for health reasons.

Posted by: Joseph Andrew | January 10, 2007 12:10 PM | Report abuse

I agree with MM, George and others who would add the condition that the incapacitated senator hsd the right to choose his replacement. Even when the balance of the Senate is not in question, it's the senator who was elected to serve in that capacity, and so he or she would have the responsibility of seeing that the position would be filled in the way closest to his or her intentions. It would also mean that a senator could feel more free to make the hard choice of declaring incapacity.

It would be hard to do this if the senator is so incapacitated that he or she can't name a successor.

FWIW, I'm registered Democrat.

Posted by: Keith | January 10, 2007 12:09 PM | Report abuse

I am not going to give my opinion on if an amendment is needed. The reason for this is I believe it would be clouded by the moment. In this highly partisan atomosphere we live in today I think the response of the majority might be different. It would be better to debate the amendment when no current senator would be affected. Under these conditions I am sure fewer republicans would be for an amendment and more democrats would be for it. Finnaly, as human beings we should all wish Tim Johnson the best recovery possible.

Posted by: Ray | January 10, 2007 12:03 PM | Report abuse

I don't think we can draw a parallel between the rules governing a president's incapacity and those governing a senator's. The executive branch is the president, but the legislative branch is a body of many individuals. The consequences to the country's ability to conduct business of a president's incapacity are great in the immediate term, whereas the consequences to the Congress's ability to conduct business are affected by acting too hastily in the same timeframe.

Posted by: Richard Hudak | January 10, 2007 12:03 PM | Report abuse

This is a STATE issue not Federal. The particular STATE is effected. As has been said the lenght of term is 6 YEARS, more than enough time to recover. Also the replacement of a Senetor is up to the Govenor of the state who may be a different political party and negate what the VOTERS decided. As for the Strom Thurman point, BRAVO. Let the guy recover, get to what he needs to do and remember, this doesn't require a lot of heavy lifting.

Posted by: Joe | January 10, 2007 11:59 AM | Report abuse

Chris: Thanks for getting away from the "2008" obession. I think that there's a marked increase in the quality of today's posts. I look forward to more non-2008 threads.

Silent Call has an interesting point about being paid, but not working. Do Presidents, Senators and Representatives have unlimited Sick Leave during the course of their term?

Posted by: Nor'Easter | January 10, 2007 11:57 AM | Report abuse

I think that this question is interesting because if the senate was not so evenly split this question would be on the last page.

While I wish the Republicans did have control of the senate, I would not agree with this amendment. I would not agree with it because we would have no way to make the judgement call if someone is capable of completing their duties. Who would it be left up to? I could see that getting out of hand.

I think a good way to solve this problem would be to allow the senator who can no longer serve pick who would replace him. That way a democrat or republican can pick someone in their respective party instead of the governor who might be in a different party and change control of the senate or house.

This would overall allow people to step down in a situation like this without truly devestating their party.

I woluld also like to point out that a sickness is not the only time people miss votes. When someone runs for President they often miss scores of votes on the floor. Should we also say that this is not acceptable? I think not.

Senators McCain, Brownback, Kerry, Biden and many others in the coming months should not be forced to resign because they will miss important votes while in Iowa, New Hampshire, Nevada (for the dems) and many other states.

Thank you.

Posted by: George | January 10, 2007 11:55 AM | Report abuse

After posting my prior post, I checked the actual text of the 17th Amendment. Contrary to what the FIX says, the 17th Amendment DOES NOT "provide that a senator to be removed from office only by death or resignation, regardless of his or her physical condition." Instead, the 17th Amendment states, in relevant part: "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."

It seems the "death or resignation" standard is just practice, not US Constitutional law. Thus, contrary to what I wrote before, I believe a state would (should?) be able to legislate when a senator's condition constitutes a vacancy. As the US Term Limits opionion I cited to above was a 5-4 opinion of the Supreme Court, I believe the Supreme Court would uphold such a state law.

Posted by: Joe | January 10, 2007 11:53 AM | Report abuse

Such a provision would only be workable if there was also a mechanism in place to ensure that the replacement Senator is of the same party. Otherwise there would be a significant risk the provision would be misused to force a change in majority control in the Senate. As well, such a provision should require that the affected state be the party that initiates the process. It is primarily their interests being impacted, after all. Otherwise there would be a risk that the provision would be misused by other Senators or the President to rid the Senate of an unpopular Senator.

Without these provisions, even if a Senator were legitimately incapacited, the political issues would over-shadow the process, making a decesion about incapacity one more about partisan control than the good of the state affected.

In short, it would be messy.

Beyond that, the need for such a provision is much less compelling than in the case of the president. First, ask yourself whether anyone outside of South Dakota would be concerned about the question if partisan control of the Senate were not affected. If the answer is "no", is there any reason to discuss the matter further? Beyond that, the president is the commander-in-chief and must be able to respond at a moments notice to a security crisis. He also directs the entire executive branch. An incapacited President leaves the country rudder-less. An incapacitated Senator does not tangibly impact the well-being of the country.

Posted by: John Steere--Wichita | January 10, 2007 11:53 AM | Report abuse

'Why couldn't you mention Robert Byrd, or Ted Kennedy, who are both certainly not the active senators they once were.'

Beg to differ, my friend. Mr. Kennedy is all over this absurd escalation whimsy of the president's, very actively indeed. He is one of the few who will fstand up and fight for what he believes.

Dan Evt -- enjoyed your post. Most scholarly.

Posted by: drindl | January 10, 2007 11:52 AM | Report abuse

No, we should not amend the Constitution over something like this. As several others have pointed out, one senator missing votes while he/she recuperates is not a blow to the Union. Business would still be done.

My fear is that such a rule could be used very cynically. Who decides what "incapacitated" is? Even a medical opinion or definition won't make this a simple, bright-line rule - consider Terry Schiavo, who, according to the Majority Leader of the Senate at the time, a medical doctor himself, was "responsive." So, would a Senator Schiavo have had to resign or be dismissed, or not? Consider a senator who gives birth with complications and cannot return to the senate to vote for many months - would she be dismissed?

I have always believed, though, that it should be a rule of both houses of Congress that a seat belongs to the party and if someone is elected under one party, the seat stays with that party until the next election. I'm a Democrat, but I felt it was unfair and unjust when Senator Jeffords changed his affiliation and changed the Senate Majority party over to the Democrats. I think people should vote for the person, not the party, but many people DO vote by party, and the people of Vermont elected a Republican. For someone to run under one party, using that party's name and their resources, and then switch sides mid-session is completely unjust, if not fraudulent. It's especially unjust when that switch changes the majority/minority split.

Along the same lines, if someone does die in office or resign and the state's laws require the Governor to appoint someone new, I believe the law should require the same party affiliation be held by the new appointee. At the very least, regardless of the count after the appointment, the new appointee should not change the designation of the majority/minority party in that chamber - the leaderships and chairmanships should stay the same until the next election.

Posted by: Lee | January 10, 2007 11:52 AM | Report abuse

No, we should not amend the Constitution over something like this. As several others have pointed out, one senator missing votes while he/she recuperates is not a blow to the Union. Business would still be done.

My fear is that such a rule could be used very cynically. Who decides what "incapacitated" is? Even a medical opinion or definition won't make this a simple, bright-line rule - consider Terry Schiavo, who, according to the Majority Leader of the Senate at the time, a medical doctor himself, was "responsive." So, would a Senator Schiavo have had to resign or be dismissed, or not? Consider a senator who gives birth with complications and cannot return to the senate to vote for many months - would she be dismissed?

I have always believed, though, that it should be a rule of both houses of Congress that a seat belongs to the party and if someone is elected under one party, the seat stays with that party until the next election. I'm a Democrat, but I felt it was unfair and unjust when Senator Jeffords changed his affiliation and changed the Senate Majority party over to the Democrats. I think people should vote for the person, not the party, but many people DO vote by party, and the people of Vermont elected a Republican. For someone to run under one party, using that party's name and their resources, and then switch sides mid-session is completely unjust, if not fraudulent. It's especially unjust when that switch changes the majority/minority split.

Along the same lines, if someone does die in office or resign and the state's laws require the Governor to appoint someone new, I believe the law should require the same party affiliation be held by the new appointee. At the very least, regardless of the count after the appointment, the new appointee should not change the designation of the majority/minority party in that chamber - the leaderships and chairmanships should stay the same until the next election.

Posted by: Lee | January 10, 2007 11:51 AM | Report abuse

I'm surprised it's not been mentioned that in South Dakota, the replacement named by the governor would serve for just 90 days, after which a permanent replacement would be elected by the people. Some other states have similar laws on the books now.

Posted by: Loudoun Voter | January 10, 2007 11:51 AM | Report abuse

What are some of the questions that need to considered? Is there a special quality of the position of senator that allows for the completion of a term of office even while unable to perform the requirements of the position? Are the interests of the voters and citizens of the state in questions as well as the United States being served by someone who cannot perform the minimum requirements of the job. Why is a senator who cannot perform any different from any other individual who holds a position critical to his constituency [ie, judge, professor,surgeon, general, etc.]? What was the genius of intent of the founders of the constitution and their followers on this subject and what precedence exists on this subject?

Posted by: mcobb | January 10, 2007 11:50 AM | Report abuse

No, we should not amend the Constitution over something like this. As several others have pointed out, one senator missing votes while he/she recuperates is not a blow to the Union. Business would still be done.

My fear is that such a rule could be used very cynically. Who decides what "incapacitated" is? Even a medical opinion or definition won't make this a simple, bright-line rule - consider Terry Schiavo, who, according to the Majority Leader of the Senate at the time, a medical doctor himself, was "responsive." So, would a Senator Schiavo have had to resign or be dismissed, or not? Consider a senator who gives birth with complications and cannot return to the senate to vote for many months - would she be dismissed?

I have always believed, though, that it should be a rule of both houses of Congress that a seat belongs to the party and if someone is elected under one party, the seat stays with that party until the next election. I'm a Democrat, but I felt it was unfair and unjust when Senator Jeffords changed his affiliation and changed the Senate Majority party over to the Democrats. I think people should vote for the person, not the party, but many people DO vote by party, and the people of Vermont elected a Republican. For someone to run under one party, using that party's name and their resources, and then switch sides mid-session is completely unjust, if not fraudulent. It's especially unjust when that switch changes the majority/minority split.

Along the same lines, if someone does die in office or resign and the state's laws require the Governor to appoint someone new, I believe the law should require the same party affiliation be held by the new appointee. At the very least, regardless of the count after the appointment, the new appointee should not change the designation of the majority/minority party in that chamber - the leaderships and chairmanships should stay the same until the next election.

Posted by: Lee | January 10, 2007 11:48 AM | Report abuse

The above is what you get for asking for comments, Chris. I really enjoyed the unsigned posts about unrelated issues.

I would agree with those who say there should be no rush to amend the Constitution, especially since the Senate has not performed in a demonstrably impaired manner before in similar situations (e.g. Karl Mundt).

The fact most of these people do not want to make any change because they are Democrats and want to maintain Senate control is irrelevant. Sometimes people are right for the wrong reason.

However, there is another thought that needs to be brought in, and yes it does sound a bit heartless, and yes I am a Republican: We pay Senators to perform work - at what point do we require that work be performed? In the real world, people do get allowances for disability and illness, but there usually is a time limit. Should there be, say, a Senate rule requiring the state legislature to install a temporary fill-in from the same party after a Senator has been unable to perform work for an amount of(three? six?) months?

Stipulated in this rule is that the Senator resumes work upon recovery, and the fill-in cannot engage in political activity.

Does that work? This way the Constitution is left alone, the partisan issue is nullified, and people actually get the work they are paying for. That should make Democrats and Republicans happy.

I shouldn't even have to add this, but people being who they are, I am praying for Senator Johnson to recover fully and resume working as soon as possible.

Posted by: Silent Cal | January 10, 2007 11:46 AM | Report abuse

If incapacitated, the office holder, in this case, Senator Johnson should resign. However, there is a political problem if the Governor, who chooses the replacment,is of a different party. In this instance having the republican governor of South Dakota choosing another republican thwarts the will of the voters. Moreover, the prospects of a party switch will encourage the ailing senator not to resign. So if a law is to be written, it should contain safeguards against party changeovers.

Posted by: Michael Klagsbrun | January 10, 2007 11:45 AM | Report abuse

If incapacitated, the office holder, in this case, Senator Johnson should resign. However, there is a political problem if the Governor, who chooses the replacment,is of a different party. In this instance having the republican governor of South Dakota choosing another republican thwarts the will of the voters. Moreover, the prospects of a party switch will encourage the ailing senator not to resign. So if a law is to be written, it should contain safeguards against party changeovers.

Posted by: Michael Klagsbrun | January 10, 2007 11:45 AM | Report abuse

If incapacitated, the office holder, in this case, Senator Johnson should resign. However, there is a political problem if the Governor, who chooses the replacment,is of a different party. In this instance having the republican governor of South Dakota choosing another republican thwarts the will of the voters. Moreover, the prospects of a party switch will encourage the ailing senator not to resign. So if a law is to be written, it should contain safeguards against party changeovers.

Posted by: Michael Klagsbrun | January 10, 2007 11:44 AM | Report abuse

It's doubtful that state legislatures would approve an ammendment that takes the power out of the Governor's hands.

The only ammendment that could pass would be an ammendment that gives the right to decide directly to the state legislature (preferably the state House of Reps.), effectively allowing each district in the state to decide the future through their representitive.

Posted by: The Baron | January 10, 2007 11:43 AM | Report abuse

A constitutional amendment is a good idea - but only if it goes further, and mandates that the people of the state must vote on the senator's replacement. Control of the U.S. Senate should not be decided by the results of a state gubernatorial election.

Posted by: e.a. nesi | January 10, 2007 11:42 AM | Report abuse

I like the idea of a "living will" for Senators, but ultimately I agree that state governments should decide the course of action in the case that their senator is incapacitated.

I do not, however, believe that political party should be a primary consideration. The people of South Dakota elected a Democratic senator, but they also elected a Republican governor, presumably knowing he would have the power to make appointments to vacant Senate seats. The Constitutional order of succession makes no provision for political party - indeed, if some disaster befell Republicans Bush and Cheney, Democrat Nancy Pelosi would become president to little protest.

Posted by: peter | January 10, 2007 11:41 AM | Report abuse

To answer your question: Have you LOST YOUR MIND?

Did you even THINK before you posted the question?

Why not pose a question about the Dems agenda? So far they've passed massive ethics reform, 9/11 commission recommendations to increase national security, they are about to increase the minimum wage, and Sen Kennedy has offered legislation to put Bush's troop increase folly to an up or down vote.

Out of all this, the best question you can come up with is should the CONSTITUTION be amended b/c of Sen Johnson's scare?

(irregardless of NEED, of the time and energy and money to campaign for 2/3s ratification, etc).......

Piss poor journalism, Chris. Piss poor.

Posted by: F&B | January 10, 2007 11:41 AM | Report abuse

A constitutional amendment is a good idea - but only if it goes further, and mandates that the people of the state must vote on the senator's replacement. Control of the U.S. Senate should not be decided by the results of a state gubernatorial election.

Posted by: e.a. nesi | January 10, 2007 11:40 AM | Report abuse

It's doubtful that state legislatures would approve an ammendment that takes the power out of the Governor's hands.

The only ammendment that could pass would be an ammendment that gives the right to decide directly to the state legislature (preferably the state House of Reps.), effectively allowing each district in the state to decide the future through their representitive.

Posted by: The Baron | January 10, 2007 11:39 AM | Report abuse

Allowing the removal of a Senator like that opens things up to too much abuse. Who decides who is incapable of serving? How long is too long?

The 25th Amendment is in there because the President is a one-of-a-kind person. Senators are one of 100.

Posted by: Rob | January 10, 2007 11:39 AM | Report abuse

I agree with previous posts discussing changing the line of succession for president. I don't think there should be anybody from the legislative (or judicial) branches in the line - pure executive branch avoids many potential problems.

Posted by: Adam Hammond | January 10, 2007 11:38 AM | Report abuse

The key phrase is "unable to perform his or her legislative duties." There should never be a rush to amend the Constitution, and in this case especially without knowing first how this would be determined and who would determine it. Some would argue that there are Senators who have served recently and some who are serving as we write who were not or are not able to "perform their legislative duties."

Posted by: Carole | January 10, 2007 11:37 AM | Report abuse

With all due respect to my fellow posters, this is NOT a state issue under our federal system. The US Constitution specifies that a senator can be removed from office "only by death or resignation." As a result, the states are powerless to legislate their own rules. (Don't believe me? Compare the US Supreme Court's opinion in U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995), which struck state-enacted term limits that imposed qualifications for candidates for office that differed from those in the US Constitution).

Thus, as the Fix states, the only way to "remedy" the current status, to the extend it needs any remedying, is to amend the US Constitution.

I personally think such an amendment would be a bad idea. There are major reasons related to national security that we can't afford an incapacitated President. There are no such concerns regarding a senator. Plus, can you only imagine what would be happening now if the "remedy" the Fix proposes were enacted? The Republicans would be pushing for a finding that Johnson was incapacitated for political reasons. The Democrats, also for politicial reasons, would do everything they could to arrange for a public showing that Johnson can somehow indicate his lucidity, perhaps by getting him to blink his eyes in response to questions. Oh, the humanity!

Posted by: Joe | January 10, 2007 11:36 AM | Report abuse

The Senate is meant to be a place for respected elders to deliberate at their chosen pace in order that their wise experience be given appropriate weight by the young and impetuous of our society who would rush off half-cocked, driven by the "passions" (as the Federalist would have it) of the masses. Given the respect that we owe our elders, the presumption of what should be a humble youth (that is, everyone who has not been deemed "senatus" or "senata" by the public at a six-year interval) to try and determine who is fit to sit in the Senate, except by popular vote, is _exactly_ the kind of excess of inexperience that the Senate is called upon to put in check. There is, fortunately, a mechanism for dealing with Senators who really are incapacitated that does _not_ require interference from ravening youth: that body of elders itself, in its wisdom is charged with the responsibility of deciding whether one of its seats is vacant. To remove this responsibility from a group of wise men and women to some unknown outside authority or mindless rule would be to undermine the very definition of the Senate. The wisdom of age should not be treated so lightly by young partisans. Senators deserve your respect and deference, as all old people do, not to be pushed around by hot-headed whelps.

Posted by: DanEVT | January 10, 2007 11:35 AM | Report abuse

Has the White House language machine lost the support of its favorite news outlet when it comes to the terminology it prefers to use to describe the proposed increase in troop strength? Sunday afternoon on Fox News, anchor Rudi Bakhtiar used the following words in describing the "surge" proposal: "a rapid influx of forces," "a troop increase," and most glaring of all, "[if Bush] chooses to escalate the war." Yep, even Fox News writers are using the word "escalate" now.

Posted by: Anonymous | January 10, 2007 11:35 AM | Report abuse

My first answer would be to agree with most posters, that a constitutional amendment is unnecessary and that this would certainly not be an issue if the majority were not hanging in the balance.

I would like to respond to JoeJoe, though, as a Ky. Republican who voted for the "loony" senator from Ky, twice! Depending on your point of view, political party etc. you could take pot shots at many senators. I liked how you picked out 2 GOP senators. Why couldn't you mention Robert Byrd, or Ted Kennedy, who are both certainly not the active senators they once were. This is another disintegration of political discourse and a definite reason not to change the constitution to fit the prevailing mood of the time.

I hope if this feature stays, the lunatics on both sides of the aisle will find a way to have an intelligent discourse, instead of personal vitriolic tirades!

Posted by: Edky | January 10, 2007 11:34 AM | Report abuse

Willie G and Adam Hammond - Is this a State issue, a Federal issue, or both?

[Don't consider this a challenge to your idea, because I don't know enough of the history or law in this area. I'm hoping that you or some others can provide some more in-depth information.]

The Federal level has some claim to authority within the process. The "federation of states" changed the entire process with the passage of the 17th Amendment (direct election of Senators). And, although the states determine how the election of Federal officials are run, do they have the power to determine how those officials serve? I don't think so.

Further, the Senate and the House determine who is authorized to sit in them (the disputed election in FL-13 is a good example). If a "recall" took place, but the Senate didn't want to "seat" the elected successor strictly for political reasons, could it thwart the will of the State voters and do so? Probably, yes.

I see this as a gray area between the States and the Federal government. Again, I believe that it is probably better left untouched.

Posted by: Nor'Easter | January 10, 2007 11:33 AM | Report abuse

To answer the question, I'd say probably not. There would simply be too much confusion and worse, possible conflict over the determination of what "ability to perform legislative duties" would mean.

Tim Johnson is a great example of this. Right now, he's not able to perform his duties. However, by most accounts he's on the road to recovery. So it's perhaps a temporary incapacitation. Who would determine if the incapacitation were permanent? And what if they were wrong?

Similarly, what of Strom Thurmond? The people of SC knew he was very old when they re-elected him, so if not the people, who should have determined his ability to be a Senator?

Imagine the scenario right now with Senator Johnson if such an amendment were in the Constitution. The Senator has brain surgery, and a long recovery ahead of him. A doctor can't predict with 100% accuracy whether he will recover or not. It would be a guess, albeit an educated one. What of Senator Johnson's rights if he made a full recovery, but lost his seat in the meantime? He'd be perfectly able to do his job, but he'd have lost it due to a temporary medical issue.

So would it be a political decision? Under this scenario, the Republican governor of SD would almost certainly determine that Johnson needed to be removed and he would appoint a Republican. Turn the tables a bit and assume the governor were a Democrat, and Johnson would almost certainly be declared fine, and no replacement would be made. The same problem would occur if the Senate overall or the President made that decision. It wouldn't be a medical decision, it would be a political one, taking voting rights away from the people.

There is just simply no fair way to determine when a Senator would be removed. Any decision would be wrought with political considerations, likely ignoring the will of the people and the recovery of the Senator.

Posted by: adam | January 10, 2007 11:32 AM | Report abuse

No, as a matter of fact, a represenative's party affiliation has nothing to do with why they are elected. Senators and Represenatives are elected these days because they are able to withstand more mud and more attacks than the other person. The notion that what a person believes in has anything to do with their chances at being elected is hopelessly naive and assumes that there are informed voters in the elctorate, which there aren't (see Bush, George W.).

If you want a Governor to appoint a Democrat to replace a Democrat, then elect a Democrat Governor. It's that simple. Don't like it? Elect someone else.

This arguement that the Governor should stick to party makes as much sense as the whining that Dems were doing after the 2002 or 2004 elections (I don;t rememnber which) that because the states that elected Dems were more poulous that THEY should indeed be in the majority was jusy f*cking stupid. And so is this argument.

Posted by: Glover Park | January 10, 2007 11:31 AM | Report abuse


The Constitution should be amended only if there is a potential crisis---this is not a crisis. Many on this thread have assumed that if Sen. Johnson were replaced by a Republican, then the Republicans would have control. This is not true. The Senate organizing resolution has passed, the majority leader has been picked and committee assignments made. If the GOP got to a 51-50 lead, they could move to reorganize the Senate, but that motion would certainly be filibustered. Reid will be majority leader for the rest of the session, no matter what happens to Johnson.

Jackson Landers makes the important point that the 3rd in line is the Senate's president pro tem, who is always someone nearing senility. But that can be changed without a constitutional amendment, since the order of succession is a federal law. It should certainly be changed, and could be.

Finally, why doesn't each state just require an election to replace an absent senator, instead of having the Governor do it? That's what Massachusetts did to avoid giving Romney the chance to replace "president Kerry". Put pressure on states, but leave the Constitution alone...

Posted by: science | January 10, 2007 11:28 AM | Report abuse


Pentagon insiders say members of the Joint Chiefs of Staff have long opposed the increase in troops and are only grudgingly going along with the plan because they have been promised that the military escalation will be matched by renewed political and economic efforts in Iraq.

The Post details the many reasons why military commanders doubt a troop increase will work ("no backup options," concern the Iraqis won't deliver, concern over "fighting in a political vacuum"), but then, you really can't argue with the reasoning for pushing it through: "In the end, the White House favored the idea of more troops as one visible and dramatic step the administration could take."

What's more, the president's plan also comes with a catchy slogan, the successor to the administration's "As they stand up, we will stand down":

Tonight, this [senior White House official] said, the president will explain "that we have to go up before we go down."

Does this sound more like Orwell or Humpty Dumpty? Or Chauncy Gardener? I'm afraid it's getting very surreal out there.

Posted by: Anonymous | January 10, 2007 11:27 AM | Report abuse

I like the idea of the state legislature choosing a replacement more than our tradition of having the governor do it. Seperation of Powers is maintained better. It would even be reasonable to elevate a state legislator. Why not automatically elevate the head of a state's senate?

Of course, I am still maintaining that this should be decided by each state individually. It is not our business, except when it affects our representation.

Posted by: Adam Hammond | January 10, 2007 11:26 AM | Report abuse

In the case that a Governor needs to appoint a Senator, the governor should be required to replace that Senator with a person from the same party as the Senator was - if the people elected a Republican, then the Governor should be required to select a Republican, the same goes if the people elected a Democrat, whether the situation is brought about because of an illness or accident.

I am not making the argument that a Senator should be forced to resign in certain circumstances. An illness does not someone incapable of serving or representing. We all get ill sometimes. In the case of someone being in a coma for a long period of time, well, how can one say that a coma of six months is too long but one of four is ok?

A totally ridiculous comment today - there are many more important parts of the Constitution to be defended - and parts that we need to be restored - before we go messing with another amendment.

Posted by: star11 | January 10, 2007 11:24 AM | Report abuse

If the replacement of Senators and Represenatives should be confined to the people of their state, then why not similarly confine their duties to affairs solely impacting their state?

Let's face it, both chambers of Congress are populated by people who can't hold a candle to folks like Mo Udall, Mike Mansfield, Scoop Jackson, etc. There are no genuine statesmen left in either body, so let's transform the Congress into what it really is -- just a glorified state legislature.

By enshrining in the Constitution our expectation that a Senator or Representative actually do their job and show up for it, which includes not just representing their state but also guiding the affairs of the entire United States of America, then perhaps we can show that we expect a little bit more of our elected leaders.

Posted by: Glover Park | January 10, 2007 11:24 AM | Report abuse

'Meanwhile, a senior official said the administration is struggling to keep a supplemental budget request for Iraq and Afghanistan under $100 billion, as promised. Defense budget analysts outside the administration say an increase of 20,000 troops for Iraq could add $6 billion to $10 billion to the 2008 budget, depending on the form it takes.'

But we can't afford 5 billion to make our ports or our airlines safe.

Posted by: Anonymous | January 10, 2007 11:23 AM | Report abuse

"People in the states elect a Senator or Representative, not a party. Ergo, there's nothing that should make a governor respect the party affiliation of the person who vacated the seat."

Doesn't the elected official's views have something to do with why the voters elected him/her? You can't have the governor give the seat a complete ideological makeover and still call it a democratic action.

Posted by: pamackie | January 10, 2007 11:21 AM | Report abuse

Each State should have the right to set the conditions for how their Senators are elected and handled in cases of emergency or incapacity. If a State wants to be handicapped by only having one active Senator or none, they should be able to determine how they want to handle that issue - it should not be an issue that requires a Constitutional change to amend.

Posted by: Charlie | January 10, 2007 11:16 AM | Report abuse

The amending part is probably out of the question at this time but perhaps something along the line of "power of attorney" that is being used by some folk concerning their treatment should they be unable to state it themselves. A "living will" would be another way. These would be accepted by most and a legal way should the occasion arise.

Posted by: lylepink | January 10, 2007 11:15 AM | Report abuse

Perhaps it should. However, if so, it should also be amended to require that the Senator will be replaced by an election, not by appointment by any official or body. That way the people will still have an elected representative.

And why limit it to Senators, why not members of the House too?

Personally, I think that amending the Constitution should be reserved for much more important issues than this.

Posted by: Anonymous | January 10, 2007 11:14 AM | Report abuse

The amending part is probably out of the question at this time but perhaps something along the line of "power of attorney" that is being used by some folk concerning their treatment should they be unable to state it themselves. A "living will" would be another way. These would be accepted by most and a legal way should the occasion arise.

Posted by: lylepink | January 10, 2007 11:13 AM | Report abuse


'Vice President Cheney, Secretary of State Condoleezza Rice, Defense Secretary Robert M. Gates and White House Chief of Staff Joshua B. Bolten attended the meeting. Tauscher said that Cheney emphasized his concerns about Saudi Arabia.'

It's all about the oil, my friends. The blood of our soldiers in exchange for the Saudi oil. It's really quite a straightforward transaction.

Posted by: Anonymous | January 10, 2007 11:12 AM | Report abuse

I think it would be very hard to define "unable to perform his duties" and not have that definition include just about everyone currently in the Senate.

Posted by: jan | January 10, 2007 11:07 AM | Report abuse

' Your typical man in his 80's or 90's or 100's in the case of Thurmond simply does not have the vigor, strength and mental acuity to serve as a competant President of the United States.'

Neither does bush, but why belabor the point?

'President Bush gravely warned House Democrats yesterday that America's credibility would be shattered if the United States pulled its troops from Iraq, forcing close ally Saudi Arabia to look elsewhere for protection.'

HUH? Did I miss something? Our troops are getting murdered and maimed in order to protect -- Saudi Arabia? WTF? The 9/11 hijackers? The princes who constantly diddle us and hold us hostage on on oil prices?

If I had a loved one in the military, I'd be marching on the white house now. This is an outrage.

Posted by: drindl | January 10, 2007 11:07 AM | Report abuse

People in the states elect a Senator or Representative, not a party. Ergo, there's nothing that should make a governor respect the party affiliation of the person who vacated the seat.

Posted by: Tip | January 10, 2007 11:07 AM | Report abuse

We should be very cautious in amending the Constitution. This problem in the Senate is not serious enough to justify an amendment. Moreover, Johnson's case is a kind of ironic payback for a former South Dakota senator - conservative Republican Karl Mundt, who stayed in the Senate for five years in the late '60s after he was disabled and unable to cast a vote for almost his entire term. The nation survived, as it will now too.

Posted by: gpomper | January 10, 2007 11:06 AM | Report abuse

For 217 years the Republic has managed to survive without such an Amendment. One Senator represents 1% of the Senate. Most of the business of the Senate is not affected by one vote missing. True, at times it could be.

The 25th Amendment has a built-in feature which minimizes the chances for major controversy or governmental chaos; the Vice-President is almost always of the same political party as the President. [It's not guaranteed, but will probably continue to be that way.] "Power" doesn't move from one party to the other; and nothing chnages that way. Removing or recalling a Senator could cause things we didn't expect or don't want. The Law of Unintended Consequences is sitting in the shadows just waiting to take effect.

Example: The 22nd Amendment. Many Republicans rue the fact that hatred for FDR motivated them to push for that Amendment. Now they've had it prevent two subsequent Republican Presidents who might have been elected to a Third Term, if they wanted to run.

Don't "fix it!" it ain't broke; it's just a temporary inconvenience.

Posted by: Nor'Easter | January 10, 2007 11:04 AM | Report abuse

Willie G beat me to it. This is a state issue. States have varied means to remove a living Senator from his seat, and each state can adapt those rules if they see fit. For the rest of us, it is not our business. The Senate is fully functional.

Personally, I would be mad if my Senator wasn't doing his or her job. I think it would be reasonable to remove someone who was incapacitated for some amount of time. The ability to designate an interim Senator could be argued, perhaps some kind of state-level legislature confirmation vote would be appropriate. I definitely think that governors should fill vacancies without changing the party, but even that should be a state's decision.

Posted by: Adam Hammond | January 10, 2007 11:03 AM | Report abuse

Oh, please, the notion that the Governor of SD should appoint a Democrat is riddiculous on its face. Does anyone think that a Democratic Governor would appoint a Republican if the tables were turned?

Bottom line: a Republican is the Governor of SD, he gets to do what he wants. Don't like it? Try and get a Dem elected.

Posted by: Glover Park | January 10, 2007 11:02 AM | Report abuse

I enjoy your reports, Chris. We should not tinker with the Constitution. This is a very unusal circumstance, and it is unfortunate that we probably could not depend on the republican governor of SD to appoint a Democrat to represent his state and his people in the US Senate. That would show too much class and integrity in this day and age of divisivie, bitter politics. Besides, the GOP has proved to be a disaster in terms of legislation and White House leadership the past six years. The party needs to "earn" its way back into power the "old fashioned" way, and not through an unfortunate medical condition of an opponent.

Posted by: Wade Wagner | January 10, 2007 11:00 AM | Report abuse

More than 50 people were killed by American air strikes in Somalia on Sunday, officials of the transitional Somali government said today.

The air strikes began Sunday night, when an American AC-130 gunship operating from a base in Djibouti pounded an area where American officials said three terrorist leaders were hiding.

It was not clear whether any of the intended targets had been killed.

News of the air strikes set off fresh waves of anti-American anger in Mogadishu.

Posted by: Anonymous | January 10, 2007 10:57 AM | Report abuse

Imagine a situation in which a senator falls into a coma shortly after being sworn in. She has just under six years left to serve, but she spends all of them completely unconscious and away from the Hill. She doesn't die, but she doesn't even have to ability to resign her post. Should her constituents be deprived of half of their representation in the Senate for six years?

My suggestion -- and this doesn't require an amendment to the Constitution -- is that Senate rules (and/or the US Code)be modified to direct each Senator to write up a kind of "living will" to be executed by her staff in the event she is incapacitated for such an extended period of time. The "living will" would trigger an automatic resignation for as many scenarios as the Senator wishes to establish (for example, "If I fall into a nonresponsive coma lasting more than six months....").

The remaining concern, of course, is that the Governor may be of a different political party than the Senator, as in the case of Sen. Johnson. *This* is why we should consider amending the Constitution. Until the ratification of the Seventeenth Amendment in 1913, Senators were elected not by the citizens of a state but by the state legislature. Under a system in which the state government selected the Senator, it makes sense to have the Governor replace a resigning or deceased Senator. However, since we've had the people elect Senators since before World War I, we should really consider amending the Constitution to require that a special election be held rather quickly (a month? three months?) to replace a Senator who dies or resigns (even if that resignation is through my "living will" suggestion).

Posted by: BLTom5 | January 10, 2007 10:53 AM | Report abuse

As was pointed out earlier the President is one man, where as the Senate is 100 men and women all working togethor to do their job. It is unneccesary to need all 100 at any give time to do that job so there is not a 'need' to replace one who is incapacitated.
Also there already is a system in place to take make sure that a senator who can not perform has to leave office, its called voting. It happens every six years. I don't think that one Senator not making his votes for two years is going to shake the foundations of our democracy.

Posted by: Andy R | January 10, 2007 10:53 AM | Report abuse

Who gets to decide who is fit for office and who isn't?

Posted by: meg | January 10, 2007 10:53 AM | Report abuse

If an elected Representative or Senator cannot do his or her job, then there should be an Amendment to the Constitution requiring that, at the very least, they resign and that a special election be held to replace them.

This is not an issue of partisanship, Democrat v. Republican, etc. This is about doing one's job. When the American worker is sick or incapacitated, he'she takes sick time, etc. Or, if their time is used up, they don't get paid. Sen. Johnson is not doing his job right now and has used up his sick time. Why should the American taxpayer be expected to pay him or anyone else for non-performance?

Posted by: Glover Park | January 10, 2007 10:52 AM | Report abuse

In the case of the 25th amendment you are talking about the voluntary assignment of duties to someone (the Vice President) who was elected for this purpose. I don't agree that there is a real need for 'Vice Senators.'

As a matter of national security we *need* to have a commander-in-chief to be able to make decisions 24/7. But we do not have the same pressing need for every one of our 100 Senators to be available at every moment. They are not executives.

While I really didn't like the fact that Strom Thurmond was totally incompetant and mentally unfit to carry out his duties in the final years of his career, it hardly constituted a national crisis. The same is true of Tim Johnson. He's out of commission for a few months but somehow the Union seems to be enduring well enough.

At the end of the day, this is just not enough of a problem to justify fiddling around with the Constitution. It's the sort of thing that might have made sense to write into it in the first place but our system has done quite well for over 200 years without such Constitutional language.

If you must go fooling with the Constitution with regard to the competancy of Senators, the one thing that I would gently suggest would be changing the rules of Presidential succession such that the most senior member of the Senate is no longer in line. Make it the majority leader instead. Or the minority leader for all I care. The current system ensures that in the case of a plane crash killing the President, Vice President and the Speaker of the House, we will have the most dottering, decrepit and elderly member of the Senate for a President. Until his death, that would have meant 'President Strom Thurman' at a time when his chief of staff was literally doing his job for him. Today it would get us President Robert Byrd. Your typical man in his 80's or 90's or 100's in the case of Thurmond simply does not have the vigor, strength and mental acuity to serve as a competant President of the United States.

Posted by: Jackson Landers | January 10, 2007 10:49 AM | Report abuse

Senator Johnson is no more or less mentally capacitated than Sen. Thurmond was for the final years of his tenure in the Senate.

Posted by: Anonymous | January 10, 2007 10:46 AM | Report abuse

In a word, no.

Posted by: Mark | January 10, 2007 10:43 AM | Report abuse

In a word, no.

Posted by: Mark | January 10, 2007 10:42 AM | Report abuse

I don't see it as a federal issue. It's true that South Dakotans may be getting short changed in some ways by having only one fuctioning Senator and this is precisely why it should be up to them whether an "incapacitated" Senator should or should not be removed from office. I'd think a recall provision in state law could address this issue.

An equally strong argument could be made that allowing the federal government (or the state governor) to decide when a Senator's seat can be vacated also serves to short change the voters. If they elect a Democrat (for example) and the federal gov't or the state governor have an interest in appointing a Republican replacement, does that not also hurt the interests of the people? Again, a properly worded recall provision in state law could address this issue.

Posted by: Willie G | January 10, 2007 10:40 AM | Report abuse

The framing of your question is comparing apples to oranges:

"Should the CONSTITUTION BE AMENDED to require that a seat be DECLARED VACANT if a SENATOR is unable to perform his or her legislative duties? (Remember that the 25th Amendment sets out a process by which the PRESIDENT can TEMPORARILY SIGN OVER POWERS to the vice president should he become incapacitated.)"

I would be for this "declared vacant" amendment only if it applies also to the president, especially upon proof of mental instability or plain stupidy.

http://whathappenedtomycountry.blogspot.com

Posted by: Truth Hunter | January 10, 2007 10:39 AM | Report abuse

'Rick Santorum has gone from junior senator to senior fellow: As of today, the Pennsylvania Republican is an employee of the Ethics and Public Policy Center, a Washington-based think tank. "I want to contribute to the world of ideas," he says.'

LOL -- you mean like gay pornography? For those who don't know, Santorum accepted more in contributions from porn distributors than any other senator. A fine distinction, eh? Mr. Preachy Public Morality.

'After 16 years in Congress -- four in the House, 12 in the Senate -- Santorum lost his bid for reelection in November.

Yet he hopes to remain in the public spotlight as director of the EPPC's brand-new America's Enemies program.

"It's a stark name," says Santorum. "But we wanted to be candid about the fact that America really does have enemies and to point out that the nature of these enemies is much more complex than what people realize. It's not just Islamic fascism, but also Venezuela, North Korea, and, increasingly in my opinion, Russia."

'America's Enemies' -- EVERYBODY. Sound McCarthyesque enough for you? Sound like endless war [and endless money going into secret contractors pockets]? You bet it is.

What we really have to fear is fascists like Santorum. And if you really wanted to devise a fitness test for Congress Mr. Santorum should have been the first one out.

And have you noticed? This is the new meme. You heard about Hannity's new show, Enemies of the State" This is the new fearmongering. This is how the conservofascists hope to take back power -- by militarizing the state, by scaring the beejeezus out of people. Watch for it.

Posted by: Anonymous | January 10, 2007 10:38 AM | Report abuse

Lets leave the constitution alone! Or if we are going to bother with constitutional changes, lets do something important like expand the number of congressional seats so that our representatives can be more responsive to their constituencies.

Posted by: elan | January 10, 2007 10:37 AM | Report abuse

'Rick Santorum has gone from junior senator to senior fellow: As of today, the Pennsylvania Republican is an employee of the Ethics and Public Policy Center, a Washington-based think tank. "I want to contribute to the world of ideas," he says.'

LOL -- you mean like gay pornography? For those who don't know, Santorum accepted more in contributions from porn distributors than any other senator. A fine distinction, eh? Mr. Preachy Public Morality.

'After 16 years in Congress -- four in the House, 12 in the Senate -- Santorum lost his bid for reelection in November.

Yet he hopes to remain in the public spotlight as director of the EPPC's brand-new America's Enemies program.

"It's a stark name," says Santorum. "But we wanted to be candid about the fact that America really does have enemies and to point out that the nature of these enemies is much more complex than what people realize. It's not just Islamic fascism, but also Venezuela, North Korea, and, increasingly in my opinion, Russia."

'America's Enemies' -- EVERYBODY. Sound McCarthyesque enough for you? Sound like endless war [and endless money going into secret contractors pockets]? You bet it is.

What we really have to fear is fascists like Santorum. And if you really wanted to devise a fitness test for Congress Mr. Santorum should have been the first one out.

And have you noticed? This is the new meme. You heard about Hannity's new show, Enemies of the State" This is the new fearmongering. This is how the conservofascists hope to take back power -- by militarizing the state, by scaring the beejeezus out of people. Watch for it.

Posted by: Anonymous | January 10, 2007 10:35 AM | Report abuse

First off, I sincerely hope Senator Johnson can return to full capacity and to his duties in the Senate. The only real reason why this question has been brought up is because of the 51-49 majority that the Democrats have. Are we even discussing this if either party has a 5-10 seat advantage? I don't believe that the Constitution should be amended to deal with this. The Senate needs to show some humanity and let the man recover on his own timetable.

Posted by: Philip Johnson | January 10, 2007 10:34 AM | Report abuse

Accordingly, Strom Thurman should have been kicked out of the Senate about 10 years before he died, as he was totally gone by the end and clearly had someone behind him raising his hand for votes.

For that matter, what about that senator from KY, who went crazy on the campaign trail-- shouldn't someone evaluate his mental competence to see if he's got all his marbles? Of course, what does it say about the folks in KY who voted for him...

Heck, by these standards, I'd argue that Tom "lesbians in the schoools" Coburn should be led away by men in white jackets.

Posted by: JoeJoe | January 10, 2007 10:32 AM | Report abuse

The president gets to pick his vice-president but the incapacitated senator does not get to pick his replacement.

Also, enforced vacancy (suggested constitutional amendment for senate seats) is different from *temporarily* signing over powers (existing amendment for president).

Purposefully not resigning is an acceptable check and balance. An incapacitated senator can use this course to prevent his seat being given to someone his constituency wouldn't have voted for.

Purposefully not resigning is certainly no less reasonable than some of the other bizarre checks and balances that have evolved in the Senate. If it's not broken, don't fix it.

Posted by: MM | January 10, 2007 10:31 AM | Report abuse

Let me guess, Tony, you're a republican. Because your senators have been so gentlemanly this last session, bullying Democrats and stripping them of all minority rights, rendering them totally powerless.

Please. Get over it.

Posted by: Anonymous | January 10, 2007 10:25 AM | Report abuse

Let me guess, Tony, you're a republican. Because your senators have been so gentlemanly this last session, bullying Democrats and stripping them of all minority rights, rendering them totally powerless.

Please. Get over it.

Posted by: Anonymous | January 10, 2007 10:23 AM | Report abuse

Making a comparison to the executive branch is off base here for a number of reasons. Obviously, one senator does not equal one president. Plus, isn't stability the reason that we have six-year Senate terms in the first place? The length of the term offers time for recovery.

It does seem like South Dakotans get the shaft if they effectively have only one senator. On the other hand, they also get the shaft if the party control of the seat changes - after all, they did vote for a Democrat (in this case). I'd say that at most, there should be a mechanism for an interim Senator who would leave the post as soon as the elected legislator was available to resume his duties. Otherwise, there could be an appointment or special election to fill the vacancy, but it would have to stay within the convalescent Senator's party. The situation with Johnson where the seat could change party control without an election seems to go against the spirit of the Constitution to me.

Posted by: pamackie | January 10, 2007 10:21 AM | Report abuse

I would have thought that a gentleman would resign under these conditions.

Posted by: Tony Konrath | January 10, 2007 10:15 AM | Report abuse

I don't see why we should hurry to change the Constitution just because the Republicans want their majority back. I don't believe we would see this rush to judgement if the shoe were on the other foot.

And to be frank --what do you actually mean by 'unable to perform'? -- you know that certain of our senators are quite aged and not, shall we say, at the peak of their powers. Some of them have had to have their hands raised by other people in order to vote. Shall we devise, then, a competency test?

Considering the low quality of intellect of some, I'm afraid that would prove quite a challenge and a very slippery slope.

Give the man a chance to recover, for God's sake, and stop diddling the Constitution.

Posted by: drindl | January 10, 2007 10:12 AM | Report abuse

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