Home -> Law Blog Directory -> Legal Commentary Blogs -> Balkinization

Legal Commentary

: Balkinization

On Teddy's successor

By Jack M. Balkin

There are so many things that could be said about Edward M. Kennedy, beginning with the fact that he was not only the best senator in my lifetime, but also, quite arguably, the best senator in American history (or, at worse, tied for first with such people as George Norris and a very few others). He also provided an inspiring example of personal redemption in becoming, quite clearly, the greatest of the Kennedy brothers (granting, of course, that we'll never know what would have become of the remarkable Bobby Kennedy had he lived). So rest in well deserved peace.

Now there is the question of the succession. Teddy was altogether correct in suggesting that it is close to zany (not his words, or course) to wait the statutorily required 145 days (under Mass. law) for a special election, thus depriving Mass. of any representation during the most important debates in many, many years (perhaps decades). Those who are saying that it would be "unfair" to change the rule adopted in 2004 are missing the point that there are real problems when governors change the part of the state's senator simply because of the fortuity of death, as Mitt Romney presumably would have done had Kerry been elected President. Some states, like Wyoming, have very sensible laws (which I, pace Vik Amar, with whom I debated the issue in the Hastings Constitutional Law Journal, believe is perfectly constitional) requiring that the governor pick someone from the deceased senator's own party (indeed, from a list compiled by the state party itself). There is also the spurious argument, adopted by Russ Feingold and the editorial page of the New York Times, that it is somehow "anti-democratic" to have any appointed senators at all. Why it is "democratic" to deprive states of any representation at all for the months required to have a special election is beyond me. And, more to the point, the real idiocy of the Feingold-Times position is revealed, as I've argued several times before, should there be a mass disaster generating a significant number of vacancies in the Senate.

In any event, I hope that the Massachusetts legislature will have the wit to reject the "special electionists" and allow Gov. Patrick to name a worthy successor as soon as possible. Massachusetts needs that; so does the country.

Full post as published by Balkinization on August 26, 2009 (boomark / email).