Friday, September 25, 2009

Edward Moore Kennedy 1932-2009: Succession...

Thank for sticking with us for the third of what will now become a four-part series on the life, career, and legacy of Senator Ted Kennedy. We apologize for the lag times on all fronts, however, these final two parts, really do belong later as the dust settles from the Senator's death. Perhaps these second two parts will be more insightful as they are actual analyses of the political implications, rather than a regurgitation of numerous media reports on the Senator's life.

Additionally, more will become available over the next few weeks on the recent elections in Massachusetts, most notably in Springfield, but also in Boston. Look for this and some thoughts on WMassP&I entering its fourth year of operation.

The Commonwealth of Massachusetts once again has full representation in the United States Senate. Yesterday Governor Deval Patrick selected and the today the Senate swore in Paul Kirk, a longtime associate and friend of Ted Kennedy, to finish out the late senator's term until January's scheduled election provides us with a permanent replacement.

The selection of Kirk was made possible by rather impromptu legislation passed by the Massachusetts General Court over the past two weeks. Prior to this week's change in law, the seat would have remained unfilled until January's election. Under the US Constitution, the Governor of a state with an open Senate seat is empowered to selected a replacement until a regularly scheduled election, usually the next Federal election or whenever the seat would have been up for reelection. However, that power can be taken away or otherwise altered by the legislature.

This process, and more importantly it mutability, is undoubtedly a vestige of the era when Senators were chosen by the State Legislatures. Although the powers granted the state legislatures was transcribed into the Seventeenth Amendment, which allows for the direct election of Senators, it is just as possible that this power to modify gubernatorial appointments is recognition that in many states the Governor is marginally more powerful than the Queen of England.

Additionally, there is some controversy about gubernatorial appointments at all. They are often politically charged and lead to divisiveness. As many of President Barack Obama's cabinet posts were filled from the US Senate, as both he and his Vice-President Joe Biden were, there was a flurry of gubernatorial appointments. Many were high-profile and controversial, most notably Obama's own seat. Filled by the incredibly egotistical yet self-professed innocent Roland Burris, the appointment was made by indicted Illinois governor Rod Blagojevich. Equally suspect, politically at although not legally, was the appointment Ted Kaufman to finish Biden's term. Many have posited that Kaufman, who has said he will not run in the 2010 special election to finish Biden's term, was selected only as a seat warmer until Biden's son, Delaware's Attorney General, returns from Iraq.

These controversial appointments and others have led many in Congress to consider amending the Seventeenth Amendment and eliminating Gubernatorial selections entirely. However, a new mechanism for appointments to vacancies, even if the answer is sooner elections, would be controversial and potentially problematic as it could force state to fund unscheduled elections unwillingly. Conversely, the appointments could remain in force, but the appointee might be barred from running in the special election.

Back to Massachusetts. The Bay State until 2004 had a system that allowed for a gubernatorial appointment were there a vacancy. This power was stripped of the governor, then Republican Mitt Romney, out of a fear that John Kerry, should his bid for the Presidency be successful, would appoint a Republican. The reasons for this change were specious, and particularly troubling because the legislature refused a compromise offered by Romney which would have let him appoint somebody for the six or so months between the vacancy and a special election. Essentially, his compromise would have created what the law is this very minute.

The actions on the part of Democrats on Beacon Hill in 2004 was inexcusable. It was partisanism at its worst and a symbol of how far things had degenerated at the State House. However, this bill was also passed before any of us knew Ted Kennedy would not live out the decade.

People raised up cries when Kennedy, weeks before his death, called for the law to be changed. Changing the law back would have been partisan, too. However, both Kennedy and the Legislature, were right to get Massachusetts its full representation up and running. Additionally, as there is usually something of a smooth transition, Kennedy's staffers and pending constituent cases were in danger of being put out in the cold by the Senate clerk's office, which noted, quite simply, that they no longer had a boss.

Initially, however, Democrats on Beacon Hill did nothing. Certainly they had hoped that they could slide into January without any trouble. However, with health care reform at full boil and lots of other issues brewing, that vote, the filibuster breaking 60th vote could be priceless. Pressure from the President on down was put on Senate President Therese Murray and House Speaker Bob DeLeo. However, changing the law would only prove the partisan motives behind the 2004 change.

To the Republican discredit, who have been racking up solid un-ignorable issues to attack Beacon Hill Democrats in 2010, they may have failed to truly maximize the potential of this one. First of all a number of Democrats did not vote for the change, mindful of their own political liability. However, quite a few, certainly some at risk next year did. Republicans choice of action was to oppose returning some appointment powers. This position while not damning, essentially put them on the wrong side of the issue.

Had Republicans said "we were right all along" and the Democrats made the blunder, they could have voted for the change back and then kicked the proverbially butt of any Democrat who switched their vote from 2004. By opposing the legislation up to and including a failed legal challenge, they may have painted liability on themselves. Luckily, it is doubtful that any Republican running for reelection next year will lose because of it and individual Republicans challenging incumbent Democrats can say they did not get a vote.

Depending on how independents play in next year's gubernatorial race and how the Democrats tackle issues over the next year, a Republican resurgence of sorts is likely. By no means will they take either chamber, but they could break the super majority which could make a successful Republican candidate more powerful than GOP governors are used to in this state.

It is unfortunate that the legacy of Ted Kennedy should be tainted by what will ultimately just a footnote in history. Zealous partisanism, concerned about Kerry's seat, marred what should have been a smooth transition that could have happened quietly in the background of Kennedy's death.

In the meantime, Senator Paul Kirk is in Washington now. For better or for worse, his vote will be crucial in the next few months and Massachusetts rightfully stands before the Senate as the Founders intended.

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