Kennedy Was Right about Gubernatorial Appointments of Senators, But for the Wrong Reason

The late Democratic Senator Edward Kennedy’s recent suggestion that Massachusetts return to gubernatorial appointment of senators to fill vacancies temporarily was right, but for the wrong reason. He had helped initiate a change to Massachusetts’ procedure for filling such vacancies in 2004 by convincing his state's legislature to allow for a special election to fill the vacancy instead of permitting the governor to make the immediate appointment until a special election is held at the next federal election.

Because the governor of Massachusetts at the time was Republican, Kennedy did not want him to appoint a Republican to appoint a fellow member of the GOP to the Senate. He did not seem concerned at that time that the Bay State would be without the representation of two senators while the months-long process of conducting a special election took place.

Kennedy justified his recent change of mind out of concern that Massachusetts would be without its full Senate representation, but Kennedy's real concern was probably that the vacancy in the Senate seat his passing would create would leave the Democrats with only 59 seats (including the two Independents who caucus with them) – one shy of the 60-vote supermajority necessary under Senate rules to pass legislation over any filibuster by the minority. Therefore, he wanted that vacant seat to be filled quickly, which would happen if the governor appoints someone to fill the vacancy temporarily, instead of waiting for a special election. Now that the governor of Massachusetts is a Democrat, Kennedy changed his mind and supported a return to the original procedure of gubernatorial appointment.

The gubernatorial appointment of senators to fill vacancies in Senate seats temporarily should be retained, as I explain in my post “Retain Gubernatorial Appointment of Senators,” because of constitutional principles. I support gubernatorial appointment and oppose special elections as a matter of principle – no matter what the partisan situation is, unlike Kennedy and those Democrats who agree with his proposal and now favor gubernatorial appointment. Kennedy’s reversal demonstrates the foolishness of proposing procedural changes for partisan expedience instead of principle.

The Massachusetts legislature should change its procedure back to the original one and allow its governor to appoint someone to the Senate to take the seat Kennedy vacated. But until it does, the state deserves the lapse in representation it will have while the legislature decides the issue. The concern about lapses in representation should remind everyone of a practical reason to oppose Senator Russell Feingold’s proposed Constitutional Amendment to eliminate gubernatorial appointments of senators in addition to constitutional principles.