Vacancy-Filling Wrinkles Created by Ben Sasse’s Expected Departure from the U.S. Senate

Posted in: Constitutional Law

Earlier this month the University of Florida (UF) announced that U.S. Senator Ben Sasse (R – Nebraska) was the sole finalist in the search for the next UF President. While UF’s Board of Trustees and the Florida Board of Governors must still approve Sasse for the position before he can be formally hired, all signs point to him departing the Senate in the coming months to assume the reins in Gainesville. Sasse has served in the Senate since January 2015 and was re-elected in 2020 to a term expiring in January 2027.

Under Nebraska state law, Governor Pete Ricketts has the statutory power (and seemingly the duty) to appoint Sasse’s replacement. That’s where things get interesting. Ricketts’ second and final term as governor expires in January 2023, and there is rampant speculation that he himself is interested in serving in the U.S. Senate. Notably, Ricketts was the Republican nominee for the Senate in 2006 (when he lost in the general election), and Senate Republican Minority Leader Mitch McConnell has openly expressed his desire for Ricketts to succeed Sasse. Without denying (or even addressing) his own interest in the seat, Ricketts has publicly pledged that he will not appoint himself and in fact may let the next governor fill the vacancy, presumably in January. Conveniently (for Ricketts), the next governor is likely to be Republican Jim Pillen, a University of Nebraska Regent whom Ricketts endorsed in a contested primary (in which former President Donald Trump had endorsed Pillen’s main competitor).

The circumstances surrounding Sasse’s departure from the Senate raise questions about the U.S. Constitution’s provisions relating to gubernatorial appointments to fill vacant Senate seats. The relevant text of the Seventeenth Amendment reads as follows:

[Section 2]: When vacancies happen in the representation of any state in the Senate, the executive authority of such state shall issue writs of election to fill such vacancies: Provided, that the legislature of any state may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.

Two of us, Amar and Mazzone, wrote two essays (Part One and Part Two) for this site in March about the Seventeenth Amendment and a Senate vacancy in Oklahoma, but the Nebraska vacancy raises different issues, including whether Ricketts can leave the Senate seat open until his successor is sworn in, and whether—notwithstanding his pledge—Ricketts could appoint himself to the Senate, either directly or indirectly.

Nebraska Law on its Face Seems to Require Gov. Ricketts to Appoint a Temporary Senator

Since the Seventeenth Amendment’s ratification in 1913, Nebraska governors have appointed five U.S. senators (including Eva Bowring, the first female senator from the state). None of the five was serving as the governor when the Senate vacancy was created. The most recent gubernatorial appointment was made in 1987, a decade before the relevant Nebraska statute was revised and updated to provide:

(1) When a vacancy occurs in the representation of the State of Nebraska in the Senate of the United States, the office shall be filled by the Governor. The Governor shall appoint a suitable person possessing the qualifications necessary for senator to fill such vacancy.

. . . .

(3) If the vacancy occurs more than sixty days prior to a statewide general election, the appointee shall serve until January 3 following the statewide general election and at such election a senator shall be elected to serve the unexpired term if any.

Everyone assumes that Sasse will resign and vacate his office (and whatever else might be said about what a “vacancy” is and when it “occurs,” certainly when someone leaves office a vacancy has “occurred”) after this fall’s election but more than 60 days prior to the next statewide general election, so that subsection (3) quoted above should be applicable. If, as folks expect, Sasse resigns before Ricketts’ gubernatorial term ends in January, Ricketts, were he to want his successor (assuming Ricketts’ successor is someone Ricketts’ agrees with, something that will be known after the November election) to fill the Senate seat, would have to intentionally leave the seat vacant until his successor is sworn in.

This prospect raises some political puzzles (including whether a 50-49 Democratic majority in the U.S. Senate during the lame-duck period prior to January is worse for Republicans than a 50-50 tie given that Covid still might affect important votes), but it also might generate some legal questions under Nebraska law. The above-quoted statutory provision on its face uses mandatory language—“shall be filled” and “shall appoint”—as opposed to permissive terms, such as “may be filled” and “may appoint.” On the one hand, such mandatory wording arguably suggests a requirement that governors act promptly to fill vacancies. On the other hand, the same provision fails to specify a statutory time limit within which a governor is supposed to discharge any such duty. But a separate provision of Nebraska’s Revised Statutes, codified amidst a set of rules governing vacancies in state offices, says: “Unless otherwise provided by law, all vacancies shall be filled within forty-five days after the vacancy occurs unless good cause is shown that the requirement imposes an undue burden.” The Nebraska Secretary of State has issued a statement suggesting that this 45-day provision applies to a senatorial vacancy (and not just to vacancies in state offices). (There may be clear state judicial or other precedent applying this provision to Senate vacancies—we are certainly not experts on Nebraska statutory law.) If such a 45-day timeline were applicable, Sasse would have to resign on or after November 21, 2022 for Ricketts to be out of office before the 45-day period would have run its course. Should Sasse resign before that day, questions could arise as to whether a delay to permit Pillen (Ricketts’ likely successor) to make the appointment would meet the good-cause and undue-burden thresholds to justify non-compliance with the 45-day mandate. We don’t know exactly what Ricketts’ explanation would be: surely he wouldn’t say the delay occurred so that he could be appointed by his successor, but perhaps he could contend that for democratic reasons (especially given the upcoming gubernatorial election) the choice is better left to the incoming governor selected soon by the people. Whether such an explanation would fly legally, it is hard for us to imagine that with the clock ticking a court would order Ricketts to act or, with time run out, a court would somehow try to bar the next governor from filling the Senate vacancy. Especially since any judicial holdup would leave the state down one Senator in DC for an extended period of time.

In any event, a statutory mandate imposing a duty to appoint (regardless of timeframe) might itself run afoul of the federal Constitution, namely the provision in the Seventeenth Amendment that authorizes state legislatures to “empower” governors. As one of us, Amar, has argued in a 2008 law review article and on this website before, state statutes imposing restrictions on gubernatorial appointments seem constitutionally flawed.

To wit: the Seventeenth Amendment says that “the legislature…may empower the executive thereof to make temporary appointments” (emphasis added). As Amar put it, “‘[e]mpower’ does not mean ‘require;’ rather, it means to create the power to do or not do something” (emphasis in original). Thus, once a legislature has empowered the governor to make a temporary appointment, as Nebraska has done, it cannot impose additional conditions like a mandate to appoint (much less within a specified timeframe), or appoint someone from a specified list of persons. This reading is buttressed by the end of Section 2, which lets governors make appointments “until the people fill the vacancies by election as the legislature may direct.” The words “as the legislature may direct” give state legislatures the power to determine the procedures for a special election, but do not apply to the governor’s discretion to appoint or not appoint. Indeed, the absence of language akin to “as the legislature may direct” from the provision relating to a governor’s power “to make temporary appointments” strongly indicates that the governor has indefeasible discretion over whether, when, and whom to appoint.

This textual interpretation is consistent with a historical understanding of the Seventeenth Amendment. By removing state legislatures from being heavily involved in the actual appointment of senators, the Amendment repudiated legislative institutions that were thought to be unduly controlled by unelected party bosses and unduly influenced by gerrymandering along partisan, racial, class, and geographical lines. Although the strongest examples of impermissible meddling by state legislatures involve requirements about who must be appointed, the Seventeenth Amendment’s apparent textual conferral of latitude on behalf of governors about whether to make an appointment at all is in keeping with trusting that institution over state legislatures. After all, both governors and U.S. senators, but not state legislators, are elected at-large by entire states.

So Ricketts might well be able to leave the vacancy to his successor no matter when Sasse resigns and regardless of any 45-day state-law clock.

If Ricketts decides to fill the vacancy before he leaves office, would that shut the door on Ricketts’ own senatorial ambitions? Not necessarily. Perhaps Ricketts could select an ally who would plan to serve in the Senate only for a matter of months, until Ricketts’ gubernatorial term ends. This ally would then resign, enabling a likely-Governor Pillen to appoint Ricketts to the (once-again-vacant) Senate seat. Such a sequence of events might to some look illicit: “I appoint you, but only if in exchange you agree to resign soon so that I can perhaps fill the seat.” Some might view that as bribery (discussed more below in the context of self-appointments). Moreover, any public promise a prospective temporary appointee might make beforehand about length of service, in order to get appointed, might not be legally enforceable (in the way that some bribe deals are hard to enforce). Still, a public proclamation by someone that he will accept the role only as a very short-term placeholder would likely place significant pressure on the appointee to keep his word. And Ricketts could, in order to deflect accusations of misconduct, defend himself on the ground that he would have made the same appointment regardless of his own personal interest in the seat. In a somewhat similar scenario, then-West Virginia Governor Joe Manchin appointed his former General Counsel to the Senate seat vacated by Robert Byrd’s death in June 2010, before Manchin won the seat himself in the November 2010 special election.

Gubernatorial Self-Appointments to the Senate Are Likely Unconstitutional

Another path is at least theoretically conceivable: Ricketts could renege on his pledge and instead simply appoint himself to the Senate. But such an appointment might not just trigger political controversy, but might also strike some as constitutionally suspect.

True, the Seventeenth Amendment does not explicitly forbid governors from appointing themselves to fill Senate vacancies. Yet the Constitution does not always spell out all the actions that it proscribes. Consider the President’s “Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.” Top constitutional scholars seem to agree that presidents cannot pardon themselves, despite the Constitution’s silence on the issue. (In the same vein, the Constitution does not specify who presides over impeachment trials of vice presidents, and yet no one credible we know would argue that a veep, who is ordinarily president of the Senate under Article I of the Constitution, could preside over her own impeachment trial.)

Two arguments against self-pardoning are worth mentioning. First, there is the longstanding legal principle well understood during the Constitution’s ratification of nemo iudex in causa sua—“no one should be a judge in their own cause.” This principle could be found not only in Sir William Blackstone’s widely circulated Commentaries on the Laws of England, but also in Federalist No. 10 and No. 80. Given the exposure to and acceptance of this principle in 1787, it would be reasonable to decide that self-pardons are unconstitutional notwithstanding the absence of express text on the subject.

Perhaps pardons and appointments should be considered as fundamentally different, and the fact that self-pardons are unconstitutional does not by itself condemn self-appointments to the Senate. In this regard, given that the appointment process is not a judicial proceeding, the nemo iudex principle might not apply—or at least not be as strong.

Yet if self-appointments are viewed as being inherently corrupt the way pardons based on bribes are, then the Senate itself might take a stand. For example, in 2008 Professors Akhil Reed Amar and Josh Chafetz (and others) argued that the Senate could refuse to seat Roland Burris, an appointee of Illinois Governor Rod Blagojevich, because Blagojevich had allegedly solicited bribes for the seat vacated by Barack Obama, and the same logic could apply to Ricketts were he to appoint himself. A majority of senators could determine that a self-appointment is invalid because it is corrupt, and thus decline to seat Ricketts. Indeed, a stronger case might be made against a gubernatorial self-appointment as opposed to Burris’ appointment. At the time of Akhil Amar’s and Josh Chafetz’s writing, Blagojevich had not yet been convicted and there was no evidence that Burris had in fact bribed Blagojevich. No such quibbles can be raised when a governor has engaged in “self-bribery” by publicly appointing himself.

Furthermore, a ban on self-appointment is consistent with the historical context of the Seventeenth Amendment. While reformers targeted state legislatures specifically because of malapportionment—an issue that does not affect statewide-elected governors—a more general anti-corruption spirit did inform the Amendment’s crafting. As renowned Senate historian George Haynes noted, “the increase of the evil [of legislative corruption] was one of the causes of the unrest and the popular belief, however unsubstantial may have been its foundation.” The allowance of inherently corrupt self-appointments thus contravenes the ideals animating the Amendment.

Post-Seventeenth Amendment historical practice is also worth mentioning —and it cuts against gubernatorial self-appointments. There have been nine instances since the Amendment’s 1913 ratification of governors being appointed to Senate seats vacated during their tenures. Yet none of them technically appointed themselves to the Senate; rather, they resigned and their lieutenant governors-turned-governors appointed them. And these de facto self-appointments seemed to be the safer legal route to pursue rather than the explicit self-appointment. (Here, too, pardons are instructive: Gerald Ford’s pardon of Richard Nixon after Nixon left office, though at the time controversial, was considered by most constitutionally legitimate in a way Nixon’s pardon of himself would not have been.)

That brings up the question: why wouldn’t Ricketts simply resign as governor before January and let his lieutenant governor send Ricketts to the Senate? For one thing, eight of the nine de facto self-appointed senators immediately lost their re-election bids. Moreover, Nebraska Lieutenant Governor Mike Foley might not appoint Ricketts to the seat. After all, Foley endorsed Trump-backed businessman Charles Herbster (rather than Rickett’s choice, Pillen) to succeed Ricketts. Additionally, the prospect of serving as governor likely enticed previous lieutenant governors to “play ball” with their departing bosses. This possibility is not much of a temptation for Foley, however, given that he would serve as governor only until January.

A Few Parting Thoughts

So what does all of this mean for Nebraska and Ricketts? It seems that Ricketts, if he wants to be appointed to the Senate, will be taking the most straightforward and legally defensible approach by letting the next governor fill Sasse’s seat. Should Ricketts secure the appointment, he has also helped legitimize his future position. Nebraskans are now aware that the governor they elect this November will appoint their next senator (somewhat akin to how voters knew the victor of the 2016 presidential election would likely fill the vacant Supreme Court seat previously occupied by Justice Antonin Scalia). Given speculation about Ricketts’ interest in the job and his close ties with Pillen, Pillen’s selection of Ricketts might enjoy greater popular legitimacy than typical Senate appointments. In turn, Ricketts would be in a stronger position if and when he runs to complete the remainder of Sasse’s term in the 2024 special election.

The Nebraska intrigue has broader implications too. For one, the idea of gubernatorial self-appointments arises more often than one might think. In November 2020, former San Francisco Mayor Willie Brown (wrongly) suggested that California Governor Gavin Newsom could appoint himself to fill the seat vacated by now-Vice President Kamala Harris. (Newsom instead appointed California Secretary of State Alex Padilla.) More generally, although several prominent Republican governors chose not to run for the Senate this year, it is notable that thirteen former governors are senators today; their previous statewide election victories can make them appealing candidates for political parties.

It is interesting to note that appointments of family members have also generated past controversy. For example, Alaska Governor Frank Murkowski appointed his daughter, Lisa, to the Senate in 2002. In the same way that presidents can legally pardon family members, we don’t think that this appointment was necessarily unconstitutional. This conclusion is further supported by senators’ willingness to serve with Senator Lisa Murkowski for nearly twenty years. Yet Alaskans certainly frowned upon the appointment afterwards, approving a ballot initiative in 2004 that required future vacancies to be filled through special elections. Still, Murkowski has won all three of her subsequent general election races, including one in 2004, the year the ballot initiative eliminated temporary gubernatorial appointments, and a 2010 write-in campaign.

The issues surrounding Senate vacancies and temporary gubernatorial appointments don’t seem to be going away, or getting any simpler. So stay tuned to see how the Sasse/Ricketts episode resolves itself, and what lessons constitutional and political analysts draw in the aftermath.

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