Fordham Law


Let Gov. Deval Patrick fill Ted Kennedy's Senate seat

Adjunct Professor Jerry H. Goldfeder in New York Daily News, September 01, 2009

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On Sept. 9, Massachusetts will consider changing its law to permit Gov. Deval Patrick to appoint an interim successor to Sen. Ted Kennedy.

Voters in the Bay State undoubtedly appreciate the historical irony. It was only five years ago that the Commonwealth passed legislation mandating that Senate vacancies be filled only through elections. The 2004 law, initiated by Democrats seeking to prevent then-Gov. Mitt Romney, a Republican, from appointing a GOPer to replace Sen. John Kerry if he were elected President, was nevertheless a progressive reform.

In 2004, Massachusetts became only the fourth state to require special elections to fill Senate vacancies. The rest still call for the governor to make an interim appointment, shutting out the voters for as long as two years. Although the United States Constitution requires House vacancies to be filled by special elections, the Constitution oddly permits a state to have its chief executive temporarily appoint a Senate replacement.

Reverting to gubernatorial appointment until a special election is held, then, may seem like a step backward. It is not. Prompted in part by the late senator's own expressed wishes, Massachusetts legislators will consider the change to ensure full representation in the Senate as quickly as possible. Without a new law, a replacement senator won't be elected until mid-January. In the meantime, our country continues to grapple with serious economic and social problems. Under the circumstances, Massachusetts' expected move seems eminently reasonable.

Earlier this year, the entire country seemed quite exercised by the anachronistic procedure of appointing replacement senators. After all, we had just gone through a presidential election where interest and participation were at record levels. No fewer than four U.S. Senate seats became vacant and were filled by appointment - President  Obama's in Illinois; Vice President Biden's in Delaware; Secretary of State Clinton's in New York, and Interior Secretary Ken Salazar's in Colorado.

Of course, what captured everyone's attention were the allegations that then-Gov. Rod Blagojevich of Illinois was attempting to "sell" Obama's seat.

Many urged a constitutional amendment eliminating all gubernatorial appointments and mandating only special elections for Senate vacancies. Sen. Russ Feingold (D-Wis.) proposed such a constitutional amendment, but its movement toward enactment has been slow. Thus, it remains up to the states to decide how to fill a Senate seat.

Quite sadly, we face the problem of succession again. Through the prism of necessity, however, the prospect of a quick appointment seems quite attractive. With Kennedy's voice stilled and the health care debate raging, the proposed legislation in Massachusetts would allow an interim appointee to safeguard the rights and interests of the state's residents until a special election is held.

It is good policy for a state to have two voting senators at all times. Indeed, it is important for the nation to have its full complement of senators as well. As such, the Feingold amendment should be redrafted to require an immediate interim appointment prior to a speedy special election.

Until the Constitution is amended, however, Massachusetts must chart its own course. It could follow the Texas model and compel interim appointments if the Senate is in session; it could adopt the Arizona approach and require an appointed successor to be a member of the same party as the outgoing senator; or, uniquely, it might bar the interim senator from running in the special election.

Massachusetts has the opportunity to craft a replacement procedure that respects the voters and addresses their immediate needs. A prompt appointment and expeditious election do just that. The effort should be supported.

Goldfeder, special counsel at Stroock & Stroock & Lavan LLP, is adjunct professor of election law at Fordham Law School.