Thursday, August 27, 2009
Well, in Massachusetts, the question answers itself. Senator Kennedy has passed from this earth, but his dying wish was for the state to change the law so that the Democratic governor could appoint a replacement right away. The problem is that the existing law requires a special election to be held, rather than having the governor appoint a replacement, and that special election could not take place until January. Now, why do they have that law in Massachusetts?
Republicans have attacked Mr. Kennedy’s proposal as flagrantly partisan, and indeed, the state’s Democrats are in the awkward position of being asked to reverse their own 2004 vote to keep vacant Senate seats empty until a special election.
So they have law A in Masschusetts. When it benefits Democrats, they change it to law B. Now that it no longer benefits Democrats, they are going to change it back to A.
Despite the "legality" of this procedure, this is lawlessness. A democracy is far more than a system involving elections. It involves a host of background norms and institutions that are part of the system, and not changing the rules retroactively in the middle of the game for partisan advantage is one of the key norms.
Of course, for a man who bent the rules his entire life, from Chappaquiddick to his outrageous Robert Bork's America speech, this law is a fitting tribute to his life in politics.
Update: For a post saying the exact opposite of everything I am saying here, see Sandy Levinson's thoughts here.
Further Update: I should say at least one good thing about Senator Kennedy. As others have pointed out, he was a strong proponent of airline deregulation back in the day. However strange it is to say, Kennedy was an important cause, with many others, including his staffer Stephen Breyer, of airline deregulation.