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FiveThirtyEight

Politics

With the 24-16 vote by the Massachusetts State Senate–following the MA House’s earlier approval–the path is now cleared for Gov. Deval Patrick to appoint a temporary custodian to occupy the late Ted Kennedy’s vacated Senate seat until a January special election is held.

Rumored possibilities include former governor and 1988 Democratic presidential nominee Michael Dukakis; former Democratic National Committee chair Paul Kirk; former Lt. Gov. Evelyn Murphy; and Harvard Law professor Charles Ogletree. Bloomberg seems to imply that Kirk is the favorite, and the Boston Globe notes that Kennedy’s nephew and son–former MA Rep. Joe Kennedy and current Rhode Island Rep. Patrick Kennedy–have let the governor know they favor Kirk, a close family friend who lives on Cape Cod. The New York Times also strongly suggests that Kirk, who chairs the John F. Kennedy Library Foundation in Boston, is the frontrunner.

Presuming Kirk is tapped, only the timing seems in dispute. Bloomberg says it could happen as early as today; the Globe saying as early as tomorrow.

Regardless of the who and the when, as I previously argued here at 538, changing the vacancy appointment rules depending on the political situation:

Several state senators changed their votes from the last time the issue came up in 2004, when the Legislature, controlled by Democrats, changed the law to provide for a special election process to prevent Governor Mitt Romney, a Republican, from appointing a successor to US Senator John F. Kerry if Kerry had won the presidency.

“I think I made a mistake then,’’ said state Senator Steven A. Tolman, a Brighton Democrat. “This is politics, right? Sure it’s politics.’’

And state Senator Karen E. Spilka, an Ashland Democrat, said, “We should have done this then. . . . This to me is not a Democrat issue at this point. It’s not a Republican issue. It’s a Massachusetts issue.’’

Eleven Democrats joined all five Republicans in voting against the measure.

“It’s wrong to change the rules depending on who’s in power,’’ said state Senator Brian A. Joyce, a Milton Democrat who was a key architect of the legislation to establish special elections to fill Senate vacancies in 2004. “We shouldn’t change the rules by which we govern our democracy depending upon who the governor is.’’

With 91-year-old West Virginia’s Robert Byrd’s health failing and thus talk already underway about succession politics in that state–in WV, the governor appoints a successor, who then holds the seat until the next general election–it remains a very ripe moment for a national conversation, and perhaps a recommendation from a panel specially-appointed by the Senate itself, standardizing the procedures for filling Senate appointments.

So here’s an idea: Presuming Deval picks Kirk, why not have him and Roland Burris co-chair a temporary panel on Senate succession? They can summon state and national constitutional experts and historians to testify and then produce a report offering recommendations to the states about their succession rules, including analysis and discussion of the following:

*The timing of special elections to fill vacancies, particularly as they relate to the time lag between the start of the vacancy and the next general election. (A retiring senator who dies two days before the regular November election already scheduled to replace him creates far less urgency than a newly-elected senator who dies two days after his January swearing-in.)

*In cases where there will be long period before the next scheduled general election, guidelines for both the timing of temporary appointments and the scheduling of interim special elections.

*Recommendations as to the partisanship of the appointee, specifically whether the replacement must be of the same party of the vacating senator, and how lists of potential nominees should be assembled in cases where the governor and the vacating senator are from different parties.

*Recommendation as to whether the governor should be able to appoint herself to the vacancy.

States may choose to do nothing in response to the report, of course; federalism entitles them to do as they please. But maybe many states would agree to change their succession rules in order to make them more uniform, so we can avoid in the future some of the political jockeying and partisan shenanigans we witnessed in Massachusetts. And Kirk and Burris can leave the Senate knowing that they bequeathed some small, notable legacy beyond serving as placeholders who filled in temporarily for men who made a more lasting impact on national politics than they did.

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