Opinion: Feinstein right, Feingold wrong
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Politically incorrect, constitutionally correct. I’m referring to Sen. Dianne Feinstein’s ‘No’ vote in a Senate Judiciary subcommittee on a constitutional amendment that would strip governors of the power to appoint temporary replacements for senators who die or resign.
The amendment, sponsored by Sen. Russell Feingold (D-Wis.) was referred to as ‘Rod’s law’ in a Times editorial opposing the idea. -- in (dis)honor of former Illinois Gov. Rod Blagojevich (right), who appointed the clownish Roland Burris to replace Barack Obama. The idea has gained momentum from the freakish fact that four current senators are interim appointees, soon to be joined by unelected replacements for the departing Sens. Kay Bailey Hutchison (R-Tex.) and Mel Martinez (R-Fla.)
Adoption of Feingold’s amendment would violate the principle that when it’s not necessary to amend the Constitution, it’s necessary not to amend the Constitution. But its also falls short on the merits. Feingold likens it to the 1913 change in the Constitution providing for the popular election of senators, replacing the previous practice in which senators were chosen by state legislatures.
But the amendment that accomplished that reform, the 17th, also contained this language: ‘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.’
This is both a principled and practical provision. It allows states to decide whether a Senate seat will remain vacant until either a special or a regular election. Most states have chosen to allow interim appointments by the governor because otherwise the state would be denied half its representation.
‘State’s rights’ has a bad reputation, a hangover from Southern resistance to racial integration, but as long as states exist (and have equal representation in the Senate) they ought to be able to decide whether waiting for an election is worth an empty seat in the Senate.