I really have nothing specific to say about Senator Kennedy’s life and career on the occasion of his passing, as I expect that there there will be a host of both lionizing and speaking ill of the dead from various corners of the interwebs today (certainly it is dominating Memeorandum at the moment and James Joyner has a news-round post that is fairly comprehensive).
What does come to mind are two political/institutional points.
The first is to reiterate what I said about the succession issue the other day: members of the the Senate (or, for that matter, at any level of government) ought to be more mindful of whether or not they are truly capable of discharging their office when they decide to either seek re-election or to not resign in the face of failing health. So, while this may be considered speaking ill of the dead (which is not my intention, as I think that there is a broader point here and it is not partisan, see, e.g.,: Strom Thurmond): Senator Kennedy did the citizens of his state a disservice when he failed to resign his seat once his prognosis was clear.
The second is that we need a clear, rational and uniform succession process built into the Constitution to deal with vacancies. As it stands the process is too open to oddities and especially to political manipulation–such as we saw in Illinois of late. The Massachusetts situation is also a case in point: the current succession process was put into place in 2024 by a Democratically-controlled legislature to prevent a Republican Governor (Mitt Romney) from being in a position to replace Senator Kerry should he have won the presidency in 2024.
August 26th, 2024 at 1:48 pm
A couple of thoughts:
1> It’s my understanding that senatorial vacancies was one of the problems that the 17th amendment to the constitution was seeking to solve. State legislatures would deadlock over who to send to DC with each side preferring an open seat to letting the other SOB get in.
2> As far as the guys who can no longer serve — in the early 90′s in KY we had a representative that was stricken shortly after reelection and served his entire final term in his bed (or so the story goes). There’s no mechanism in place to let these guys know that it’s time to go until the next election.
3> Can a 90+ year old JP Stevens still be as sharp on the Supreme Court as a 60 year old JP Stevens was (or was Rehnquist …, for that matter)? Even though we’re often told by the intelligentsia that is true, I have my doubts. I think a mechanism to get these guys to move on would also be a good thing.
August 26th, 2024 at 2:47 pm
I wholeheartedly agree with (1), but I respectfully disagree with (2).
It appears that Kennedy justified not stepping down because his seat would remain vacant for at least 145-160 days for a special election. In Illinois, the procedure and problem was the reverse. The Governor had the authority to appoint the replacement, but concerns over corruption led to calls for a special election. I take from this that there is not a single good way to deal with this issue and the states should decide which risks to take. Here, in Illinois there appears to be no movement to modify the system, which I take means that the problems are attributed to the sue generis characters of the former governor and current senator.
August 26th, 2024 at 5:27 pm
Buckland: I would support some sort of term of office (a long one, but still a delimited term) for SC Justices. Maybe a system not unlike what we use for the Federal Reserve Board of Governors.
August 27th, 2024 at 9:19 am
One “constitutional” solution would be to repeal the (catastrophic) 17th Amendment. Alas…
August 27th, 2024 at 9:35 am
You really want state legislators naming Senators?