On Monday, New Jersey Senator Frank Lautenberg passed away at the age of 89. Lautenberg had a long and distinguished career in the Senate. He was a tireless champion of public health measures targeting tobacco, alcohol and guns. Lautenberg was also an unabashedly partisan Democrat. He retired in 2000 but un-retired in 2002, when a campaign finance scandal led fellow Democrat Robert Torricelli to withdraw from the ballot. Lautenberg was then re-elected in 2008, at the age of 84.
Given Senator Lautenberg’s ideological and partisan commitments, it seems unfair that New Jersey’s Republican Governor, Chris Christie, will name his immediate successor. Although the voters of New Jersey will eventually have an opportunity to elect a new Senator, incumbency confers significant advantages. Why should a Republican governor be able to confer those advantages on a member of his own party, when the seat at issue was in Democratic hands?
The short answer is that the Seventeenth Amendment, in combination with New Jersey law, confers that power on the governor. Yet, as I shall explain in the balance of this column, there should be a better way to handle Senate vacancies.
The Best Way to Fill Senate Vacancies
The Seventeenth Amendment to the Constitution requires that when a Senate vacancy arises, the governor of the relevant state must schedule an election. Elections take time to organize, however, and the Senate may have important business to conduct in the interim. Accordingly, the Seventeenth Amendment also authorizes a state legislature to empower the governor to “make temporary appointments until the people fill the vacancies by election.” The New Jersey legislature has accepted that invitation and so authorized its governor.
Whom should Governor Christie choose? No doubt Democrats would like to see him pick a prominent Democrat, like Newark Mayor Cory Booker—who was already on record as considering a run for the Senate in 2014 (after what was expected to be Senator Lautenberg’s retirement). From the standpoint of national politics, naming a Democrat would only seem fair. After all, New Jersey voters voted for a Democrat for the Senate seat in question: Lautenberg.
But, as a practical matter, we have come to expect governors to name members of their own party. And indeed, Christie, who has already angered some of his fellow Republicans by very publicly working with President Obama in the wake of Hurricane Sandy, would risk further undermining his standing within his own party were he to name a Democrat to Lautenberg’s seat.
Moreover, Republicans can make a kind of fairness claim of their own. When New Jersey voters chose a Republican as governor—as they did when they elected Christie in November 2009—they should have known that one of the powers he could exercise is the power to make temporary appointments to fill Senate vacancies. And with a then-85-year-old Senator in Lautenberg, New Jersey voters were also on notice that an interim appointment was a real possibility.
Yet it is unrealistic to think that more than a tiny handful of voters were thinking about the filling of Senate vacancies when they went to the polls to vote for governor in 2009. Accordingly, the most fair way for any governor to exercise the interim appointment power would be to do so in a way that preserves the status quo.
Two Criteria for Preserving the Status Quo
What, exactly, does that mean? Ideally, a governor would follow two rules: First, pick someone from the same political party as the person who held the vacated seat; and second, pick someone who will not then run in the next election for the seat, so that he or she does not unfairly gain the advantages of incumbency.
Massachusetts Governor Deval Patrick’s 2009 selection of Paul Kirk to fill the vacancy created by Ted Kennedy’s death is a precedent, albeit a flawed one for two reasons. First, Patrick was a Democrat naming another Democrat, so he did not need to set aside party loyalty. Second, the Massachusetts legislature hurriedly conferred the interim appointment power on Patrick, reversing a 2004 decision to strip then-Governor Mitt Romney of the power. Hence Patrick exercised a temporary appointment power that was tainted by partisanship.
Nonetheless, in selecting Kirk, who promised not to run in the special election for the seat, Patrick did preserve the status quo—as was proven by the fact that a Republican, Scott Brown, ended up winning the special election.
The lesson to be drawn may be this: Even if a governor would pay too high a political price by naming a temporary Senator of the opposite party, the governor can still serve democratic values by naming someone who promises not to run in the next election.
Can the Law Restrict a Governor’s Appointment Power?
For the reasons already discussed, it is unlikely that Governor Christie will tap a Democrat to fill the New Jersey vacancy. He might choose someone willing to pledge not to run in the next election, but he also might not. And even if the appointee made such a pledge, it would be unenforceable.
What about the general situation? Would it be possible to require that a governor choose a member of the political party that previously held the Senate seat? Would it be possible to forbid a temporary Senator from running in the next election? The answer to all of these questions appears to be no.
As Professor Vikram Amar explained in a column here on Verdict earlier this year, a state law that requires the governor to choose someone from the same party as the departed Senator appears to violate the core historical purpose and the language of the Seventeenth Amendment. That language permits a state legislature to empower a governor to make temporary appointments, but does not authorize legislative restrictions on the governor’s choice—and there is no reason to think that the legislature’s authority to delegate no vacancy-filling power on the governor includes the authority to delegate with strings attached.
To be sure, as Professor Amar also noted, a challenge to an appointment made under the pressure of state legislation restricting a governor’s choice—or made in violation of such legislation—would likely be adjudicated by the Senate itself, not by the courts. And judged by recent experience, the Senate appears largely uninterested in rejecting temporary Senate appointees. In addition to accepting the recent appointment of Brian Schatz to serve out the balance of the term of the late Hawaiian Senator Daniel Inouye, the Senate also accepted (after initially rejecting) disgraced Governor Rod Blagojevich’s temporary appointment of Roland Burris to fill President Obama’s vacated Illinois Senate seat in 2009—despite the clouds lingering over both processes. But the fact that a state legislature might be able to get away with restricting a governor’s choice of temporary Senator should not count as a reason for the enactment of unconstitutional state legislation.
Meanwhile, a state law forbidding an interim appointee from standing for election would also likely be unconstitutional—and could be invalidated by the courts. In the 1995 case of U.S. Term Limits v. Thornton, the Supreme Court held that states may not impose term limits on their members of Congress. Although the case did not involve interim appointments, the same principle applies: The Constitution sets forth the exclusive qualifications for the House and Senate; states may not add to those limits.
If state legislation restricting a governor’s choices to temporarily fill a Senate vacancy would be unconstitutional, might federal legislation stand on a different footing? On the face of the Seventeenth Amendment, the answer appears to be no. The only legal actors who are given any power under that provision are state legislative and executive officials.
However, the Seventeenth Amendment does not stand alone. There is also Article I, Section 4, which gives Congress the power to make or modify laws governing the “Times, Places and Manner of holding Elections for Senators and Representatives.” As a 2011 student-authored paper in the American University Law Review argued effectively, the core point of the Seventeenth Amendment was to reduce, not to expand, the role of state legislatures in the selection of Senators, and therefore, it would be perverse to read the Amendment as constraining whatever power Congress previously had to regulate the selection of interim Senators.
Nonetheless, the Constitution as a whole is still probably best read to deny Congress the power to enact laws restricting a governor’s choice of interim Senator. That’s because the Article I, Section 4 power concerns state “Elections,” not interim appointments. Hence, even if a law restricting who is eligible for appointment could be said to concern the “manner” by which a Senator is chosen—a big “if”—such a law almost certainly would not qualify as a law governing elections.
Consequently, it appears that the question of whether to make an interim appointment to the Senate that preserves the political status quo is committed to governors. Here, as in other contexts, we should not be surprised that—even after more than two centuries of retrofitting—a Constitution whose authors despised the very idea of political parties functions sub-optimally in our era of partisanship. The wonder is that it functions at all.