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Seesaw Senate seats

Ted Kennedy's contradictory replacement request underscores the need for interim appointments.

August 25, 2009

The ailing Sen. Edward M. Kennedy (D-Mass.) has asked the Legislature of his home state to overturn a 5-year-old law under which the voters, not the governor, will choose a successor if Kennedy can't complete his term. Kennedy's unselfish idea probably won't be adopted, but it could help derail an unnecessary amendment to the U.S. Constitution.

Kennedy, who suffers from brain cancer, understandably wants a senator sworn in swiftly to help the Democrats enact healthcare reform, long a priority for him. He's also right on the general principle. An interim appointment guarantees that a state won't have its representation in the Senate reduced by half while a special election is organized.

The problem is that in 2004, fearful that Republican Gov. Mitt Romney would choose a replacement for Sen. John F. Kerry if Kerry were elected president, Democrats in the Legislature abolished interim gubernatorial appointments. A new law provided that the voters would choose a successor 145 to 160 days after the seat became vacant. Kennedy supported the change.

Now he is asking that Massachusetts again provide for an interim appointment by the governor. In a letter to Gov. Deval Patrick -- a fellow Democrat -- and legislative leaders, Kennedy reiterated his support for the 2004 law but added: "I also believe it is vital for this Commonwealth to have two voices speaking for the needs of its citizens and two votes in the Senate during the approximately five months between a vacancy and an election." He also asked Patrick to appoint a caretaker who wouldn't seek election.

It's ironic that Kennedy now seeks to reinstate a practice Democrats dismantled for short-term partisan advantage, and that his proposal likely will collapse under the weight of that contradiction. Still, it will have the salutary effect of reminding members of Congress of the usefulness of interim appointments.

Earlier this month, with Sen. Dianne Feinstein (D-Calif.) sensibly voting no, a Senate Judiciary subcommittee approved a constitutional amendment proposed by Sen. Russell D. Feingold (D-Wis.) that would strip governors of the power to fill Senate vacancies temporarily. The vote was an overreaction to the unusual number of recent interim appointments, including one made by disgraced former Illinois Gov. Rod Blagojevich. The 17th Amendment to the Constitution already allows states to dispense with interim appointments by governors.

Most states, including California, have chosen not to -- for the very reason cited by Kennedy for his own change of heart.

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