Chapter 6
On August 25, 2009, Democratic Senator Ted Kennedy of Massachusetts passed away., His death created a vacancy in the U.S. Senate and reduced the Democratic majority from 60 to 59, thus allowing Senate Republicans to filibuster the Obama administration’s health care reform legislation. The temporary replacement of a Senate seat is a matter determined by state law. In Massachusetts, the law in 2009 required a special election to be held between 145 and 160 days of the vacancy arising. In 2004 the Democratic majority in the Massachusetts State legislature withdrew the authority of then-governor Republican Mitt Romney to fill a Senate seat vacancy, anticipating that presidential candidate John Kerry, a Democratic senator from Massachusetts, might win the 2004 election. (As it turned out, he lost.) Senator Kennedy strongly encouraged the Democrats in the state’s legislature to override Governor Romney’s veto of that change, and they did. Ironically, in 2009 the vacancy created by Kennedy’s death now threatened to hold up or even kill the federal health care reform legislation that Kennedy himself had championed.
Seven days before his death, Senator Kennedy was again lobbying the Democrats in the Massachusetts legislature. Now with Democrat Deval Patrick as governor and the fate of health care reform in question, Kennedy urged yet another change in the law: allowing the governor to make a temporary appointment prior to the special election for Senate seat vacancies. On September 22, 2009, the Massachusetts legislature posthumously approved Kennedy’s request, paving the way for Patrick to appoint long-time Kennedy aide Paul Kirk as interim senator, thus temporarily protecting the Democrats’ veto-proof majority until the January 19, 2010 special election. Republican Scott Brown eventually won that special election, and his election eliminated the veto-proof majority once again.
The political circumstances surrounding the actions of the Massachusetts legislature in 2004 and 2009 raise questions about how vacated Senate seats get filled. Changes in the Massachusetts laws are not the only examples of political gamesmanship in state legislatures. What is the best process for filling vacated seats in the Senate – special elections or gubernatorial appointments, or a hybrid approach such as the one adopted by Massachusetts in 2009? As a result of the 2004 and 2009 actions by the Massachusetts legislature, some have called for an amendment to the U.S. Constitution standardizing the manner in which interim vacancies get filled, thus removing political considerations from the process. Do you think that the Constitution should or should not be amended for this purpose?
Consult the various links that relate to the process of filling vacated Senate seats across the 50 states, as well as historical, popular, and global perspectives on the topic.