A way to restore the people's Senate
The source of his anxiety was a Massachusetts law that prescribes a special election to fill any midterm Senate vacancy. Concerned that the five months allotted for such an election might leave his Democratic colleagues a critical vote short of the 60 required to beat a Republican filibuster, the dying Kennedy appealed to Massachusetts lawmakers to give the state's Democratic governor, Duval Patrick, authority to appoint an interim replacement.
The poignant circumstances might have prompted immediate legislative action but for the embarrassing fact that the same Democratic-controlled legislature to whom Kennedy directed his appeal had only recently amended state law to strip Patrick's Republican predecessor, Mitt Romney, of the same authority.
(That was in 2004, when Democrats worried that Romney would appoint a fellow Republican to replace Massachusetts' junior senator, John Kerry, once Kerry had been elected president. So there are a whole lot of reasons Massachusetts Democrats don't like to be reminded about the episode.)
The governors' house?
But even if legislators hypocritically decide to giveth to Duval what they only recently tooketh away from Romney, the selection of Kennedy's replacement raises the broader issue of how senatorial vacancies are filled.
Gubernatorial appointments to recently vacated Senate seats in Illinois and New York precipitated political crises in both states (and led, in the case of Illinois' Rod Blagojevich, to impeachment and a federal indictment). FairVote, a voter advocacy group, points out that if the governors of Texas and Florida fill pending vacancies in their states, more than a quarter of all Americans will be represented by at least one unelected senator.
Here in Michigan, Gov. Jennifer Granholm is periodically obliged to deny speculation that Michigan's senior senator, Carl Levin, has promised to resign his seat before the end of Granholm's term, giving Granholm the opportunity to name herself as his replacement and vault her second-in-command, Lt. Gov. John Cherry, to incumbent status.
An undemocratic vestige
The U.S. Constitution leaves individual states to decide how and when senators whose terms are cut short by death, illness, or a sudden bimbo eruption are replaced. Michigan is one of 38 states in which the governor is authorized to appoint a replacement, typically until the next general election. But Russ Feingold, the Democratic junior senator from Wisconsin, has introduced a constitutional amendment that would outlaw gubernatorial appointments and require that all Senate vacancies be filled by special elections -- the same process the U.S. Constitution prescribes to fill vacancies in the House of Representatives.
Feingold argues convincingly that the custom of allowing governors to fill senatorial vacancies is a vestige that became outmoded in 1913, when the 17th Amendment, giving citizens the right to elect their own senators, was ratified. (Before that, U.S. senators were generally elected by state legislatures.)
Feingold's amendment already has won bipartisan support -- Arizona Republican Sen. John McCain and Illinois' Dick Durban, the No. 2 Democrat in the Senate, are on board -- and approval from the Constitution Subcommittee of the powerful Senate Judiciary Committee. But neither of Michigan's senators has decided whether to support it, and it certainly won't be ratified in time to constrain Granholm's powers, should a vacancy occur during the 16 months remaining in her tenure.
Even so, ratification of the Feingold amendment would be a fitting memorial to the late Sen. Kennedy, whose populist instincts would surely have dictated support for the direct election option, if he'd enjoyed the leisure to think about it a little longer.