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Replacing Ted Kennedy

When Senator Edward Kennedy died, leaving Massachusetts’ congressional delegation one member short, Deval Patrick, the Democratic governor of the state, was eager to appoint his replacement.  There was only one problem: only five years earlier, the Democrat-controlled state legislature had specifically changed the law to remove that authority from the governor in favor of requiring a replacement to be selected by a special election.  And why had they made that change?  Because, at the time, then Senator John Kerry was running for the Presidency; and, if he had won that office, it would have fallen to the then Republican governor, Mitt Romney, to appoint his replacement.

But when Kennedy’s seat came open, the country was in the midst of the fight over “Obamacare” and in a strange political mood.  The Massachusetts political establishment feared that an election might not go their way and wanted to restore the authority of the governor to appoint a successor.  Their attempt to restore the law to its original form failed, but they did grant the governor the privilege of appointing a temporary successor to fill the role until a special election could be held at the time of the next general state-wide election (rather than demanding that a special election be called immediately) and with the presumption that the appointed “incumbent” would, therefore, have some advantage over a challenger when the election actually happened.  In the end, their fears proved to be well-founded: Patrick’s appointee, Paul Kirk, had promised (in accordance with Kennedy’s stated request) not to stand for election when his appointed term ended; and, in the wake of the eventual special election, Scott Brown — a Republican — was sworn in as the new junior Senator from Massachusetts.

At the time all this was going on, I wrote this letter to The Boston Globe to point how how stupid the whole thing was making everyone associated with it look.  It wasn’t published.  For those who have forgotten, Rod Blagojevich was the governor of Illinois who went to federal prison after being convicted of trying to sell Senator-become-President Barack Obama’s vacated seat to the highest bidder…

27 August 2009

So, the Democrats — both at home and in Washington — want the Massachusetts state legislature to change the law (again) on senatorial succession, allowing the Democratic governor to choose Senator Kennedy’s replacement rather than deferring to the electorate.

Set aside, for a moment, the appearance (and reality) of pettiness and cynicism such a move implies — it was, after all, not that long ago that the governor had that authority, until the Democratic legislature became alarmed that its exercise might fall to a Republican governor.  Even if a change now is justified, it will make them look self-serving.

But, beyond that, are we forgetting it was less than a year ago that Rod Blagojevich exposed, in dramatic fashion, the potential for corruption and abuse in such authority?  Are we forgetting that, back then, the entire Democratic establishment, all across the country, was lining up in principled opposition to such prerogative?  Are we forgetting that they were united in their fervor for democracy, united in their demand that all states adopt elections over appointments as the only ethical way?

It would seem we are, once again, witnessing the spectacle of politicians choosing specific and short-term political advantage over a systemic and long-term public good.


UPDATE: 2 January 2021

In a show of continuing and stunning cynicism and hypocrisy, the Democratically-controlled MA legislature again made an attempt, in December of 2020, to change the law in a way that would prevent Republican governor Charlie Baker from appointing a Republican replacement for Democratic Senator Elizabeth Warren, on the chance that a newly-elected President Joe Biden might appoint her to some cabinet position in his administration.  This time, their ploy was even more transparently political and self-serving than usual, for they attempted not to remove the governor’s authority to appoint a successor but to bind it: the proposed change would have enshrined partisanship into the law explicitly, rather than merely implicitly, by mandating that any appointee be a member of the same political party as the Senator they were replacing.

Fortunately — and unusually in the current political climate — partisanship lost out: the proposed change to the law was defeated.

© Copyright 2009, Augustus P. Lowell

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