Editore"s Note
Tilting at Windmills

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August 20, 2009

KENNEDY EYES NEW PROCESS FOR SUCCESSOR.... Sen. Ted Kennedy's (D-Mass.) commitment to health care reform is unrivaled, but brain cancer is preventing the Liberal Lion from participating in the debate. Worse, there's a question as to whether Kennedy will even be able to vote for reform if/when it reaches the Senate floor.

Kennedy is now thinking about setting the stage for his successor.

Senator Edward M. Kennedy, in a poignant acknowledgment of his mortality at a critical time in the national health care debate, has privately asked the governor and legislative leaders to change the succession law to guarantee that Massachusetts will not lack a Senate vote when his seat becomes vacant.

In a personal, sometimes wistful letter sent Tuesday to Governor Deval L. Patrick, Senate President Therese Murray, and House Speaker Robert A. DeLeo, Kennedy asks that Patrick be given authority to appoint someone to the seat temporarily before voters choose a new senator in a special election.

Although Kennedy, who is battling brain cancer, does not specifically mention his illness or the health care debate raging in Washington, the implication of his letter is clear: He is trying to make sure that the leading cause in his life, better health coverage for all, advances in the event of his death.

In 2004, state lawmakers were worried about Mitt Romney choosing John Kerry's replacement, in the event of Kerry presidential victory. They passed a measure to leave Senate vacancies empty until a special election is held within five months. Kennedy would now like to see that law changed -- empowering Deval Patrick (D) to fill a vacancy immediately with an interim senator, with a special election to follow soon after.

As Kennedy sees it, Patrick would get an "explicit personal commitment'' that the interim senator not run in the special election, so no candidate would have an advantage.

In general, tinkering with these laws, based on specific circumstances, strikes me as a bad idea, but the mistake seems to be the 2004 change. Like Jason Zengerle, I think what Kennedy is urging seems entirely reasonable. It's unclear, however, whether state lawmakers are willing to revisit the 2004 law.

If Kennedy is unable to serve if/when reform comes to the floor, the Democratic caucus will have 59 votes. Of course, the Senate is all about collegiality and relationships, and Kennedy has many close, personal friendships with long-time Republican senators.

Ezra ponders whether someone like Sen. Orrin Hatch (R-Utah), out of respect for Kennedy's career and their decades of friendship, might do the honorable thing and vote for reform in Kennedy's place, "to make sure that [Kennedy's] death doesn't kill the work of his life."

Alas, Hatch seems to have already ruled out the possibility.

Steve Benen 1:40 PM Permalink | Trackbacks | Comments (26)

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another indication that the gods are cursing this country for some reason (and bush/cheney is the prime evidence) it's that teddy is ill at the very moment his major opus has appeared on the national stage.

we are damned.

Posted by: neill on August 20, 2009 at 1:53 PM | PERMALINK

Deval better appoint himself, he's not getting re-elected.

Posted by: Rick on August 20, 2009 at 2:00 PM | PERMALINK

Orrin Hatch might do an honorable thing? That's a laugh . . .

Posted by: Lifelong Dem on August 20, 2009 at 2:08 PM | PERMALINK

The local domain experts at Blue Mass Group think that it is unlikely that the state legislature will play ball with this, as they don't want to give any additional power to Patrick:

http://www.bluemassgroup.com/diary/16574/ted-kennedy-get-ready

and see particularly this comment:

http://www.bluemassgroup.com/showComment.do?commentId=200404

I think Mike Dukakis would be an excellent choice for the caretaker position if the law is changed to permit one. For the actual race, AG Martha Coakley appears to want the job, as do several of our US reps, each with huge war chests from being unopposed for re-election so many times. The latter group includes Marty Meehan, now the chancellor of UMass-Lowell. It's always been assumed here that there will be a primary Armageddon once a US Senate seat becomes available.

I agree that the mechanism proposed by Sen. Kennedy is the best one on the merits.

Posted by: DaveMB on August 20, 2009 at 2:09 PM | PERMALINK

Not just in his own case, but in general Teddy has proposed the best solution. Allow a governor to appoint a replacement so that the seat doesn't remain vacant, but require an election within five months. The trouble now is that when a Governor appoints a replacement, we're generall stuck with him (see Burris, Roland) until the next general election. But the Kennedy plan is a truly sensible compromise, and I'd like to see it made nationwide. (Some tweaking would be required if the vacancy happened too close to the next general, but that can be done easily.)

Posted by: Prup (aka Jim Benton) on August 20, 2009 at 2:20 PM | PERMALINK

....it is unlikely that the state legislature will play ball with this, as they don't want to give any additional power to Patrick:

This is news? For a generation -- the Birmingham-Bulger-Harrington era anyways -- the Great and General Court of the Commonwealth hasn't been sure that having an actual governor is necessary or desirable.

As for Patrick, I expect a holocaust of sitting governors regardless of party in '10.

Posted by: Davis X. Machina on August 20, 2009 at 2:22 PM | PERMALINK

Doesn't it bother anyone to change the rules in the middle of the game?

I don't like the idea of needing a Publican to get to 60 votes if Kennedy dies but they are the rules right now.

I think that people should respect the law and not decide what is a good law or a bad law based on whether it benefits them today.

Posted by: neil wilson on August 20, 2009 at 2:23 PM | PERMALINK

Decades of friendship and the myth of Senate comity be damned, Orrin Hatch or any other Gooper who did what Ezra suggests would be in literally-mortal danger. Dick Cheney hisownse'f just might put out the contract.

It's equally unlikely to fly in Massachusetts, according to what I read in the Globe this morning (state senate prez and house speaker, though mum about this today, previously on record against it). So the solution must lie elsewhere.

Posted by: lotus on August 20, 2009 at 2:25 PM | PERMALINK

What's stopping Kennedy from resigning today, effective upon the conclusion of the special election (or his death), so the election can be scheduled now? And what stopped him from doing this earlier?

I hate to say this, because I have a lot of respect for him, but if it's legal for Kennedy to do/have done this, he's being fairly selfish in holding onto his senate seat and asking that the state dance around his wishes in keeping it until the last minute (especially when he's been too ill to really represent the state for a few months now).

Posted by: argo0 on August 20, 2009 at 2:26 PM | PERMALINK

If you look at this in a different light, it is Teddy's preparation for his own end of days. Something the Republicans call a death panel. A public demonstration to enlighten those who think planning for our demise is foolish or govt. controlled. And, he wants to ensure that the HC bill, for whatever it ends up being, is passed. It will be part of his legacy.

Posted by: jrichards on August 20, 2009 at 2:48 PM | PERMALINK

Hatch wouldn't have to vote for reform. He'd merely have to vote for cloture. That he is unwilling to do so says a great deal about him.

Posted by: rk on August 20, 2009 at 2:56 PM | PERMALINK

Doesn't it bother anyone to change the rules in the middle of the game? -neil wilson

Any time you change the rules, you're in the middle of the game.

I think that people should respect the law and not decide what is a good law or a bad law based on whether it benefits them today. -neil wilson

Current events catalyze change. Nothing new about that.

Honestly, what is it about this particular change that you don't like that inspires you to make mind numbingly silly arguments?

Posted by: doubtful on August 20, 2009 at 3:14 PM | PERMALINK

If Sen Kennedy wants to be assured that his seat does not go vacant, he should resign now and help pick his successor, rather than wait to see which comes first, a vote on health care or his memorial service.

I am sorry for the cold tone, however, this is a perfect example of the benefits of being able to discuss 'end of life' issues, when those who are leaving us can still have meaningful input into what happens after they are gone.

Posted by: bcinaz on August 20, 2009 at 3:21 PM | PERMALINK

Brave of Kennedy to be openly discussing how best to keep the reform ball moving after his death.

Contrast this attitude with that of John McCain, who's been clinically dead for years and won't even give up his seat.

Posted by: shortstop on August 20, 2009 at 4:40 PM | PERMALINK

In the spirit of bipartisanship, Orrin Hatch should get to pick Kennedy's successor (with input from Sarah Palin, Newt Gingrich, and Joe the Plumber). The successor shouldn't even have to be from Massachusetts (although they should have a real birth certificate from somewhere in the USA).

Posted by: qwerty on August 20, 2009 at 5:07 PM | PERMALINK

"Alas, Hatch seems to have already ruled out the possibility."

Not very Christian of him, is it?

Posted by: Hedley Lamarr on August 20, 2009 at 6:36 PM | PERMALINK

Argo wins for best comment. Teddy should have told MA to start the election process to replace him.

Posted by: Lance on August 20, 2009 at 6:50 PM | PERMALINK

What's stopping Kennedy from resigning today?

The Massachusetts law says that the special election must take place no later than 160 days, but no sooner than 145 days from the date the vacancy is announced. (The clock starts when the vacancy becomes known, even if the effective date is delayed.)

If Kennedy resigned today, it would be January of next year before Massachusetts voters could replace him. Can Obama and Reid afford to wait until then?

And as to whether or not Kennedy should have stepped down earlier in the year, remember, the original timetable called for a Senate vote before the August recess, and it wasn't until late July before they abandoned that goal. Kennedy would have had to announce his resignation back in February in order for his replacement to be there for a vote before the recess.

Posted by: Dwight on August 20, 2009 at 7:49 PM | PERMALINK

Rather than expecting one of the Republican senators to vote as Kennedy would, perhaps they could abstain, thus removing a vote from each side. (This is done in parliamentary democracies frequently.)

Posted by: Russ Skinner on August 21, 2009 at 12:17 AM | PERMALINK

Unless I'm mistaken, it's not accurate to say that Hon. Sen. Kennedy "now" has this position; this belies the fact that the Senator was apposed to the previous change, and has been consistent on the issue throughout.

Posted by: jhm on August 21, 2009 at 7:37 AM | PERMALINK

Kennedy pushed to get the replacement procedure we now have. So he can change it back to suit his desires! Never a shortage of Gall with a Kennedy!

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