Wednesday, August 26, 2009

On Teddy's successor

Sandy Levinson

There are so many things that could be said about Edward M. Kennedy, beginning with the fact that he was not only the best senator in my lifetime, but also, quite arguably, the best senator in American history (or, at worse, tied for first with such people as George Norris and a very few others). He also provided an inspiring example of personal redemption in becoming, quite clearly, the greatest of the Kennedy brothers (granting, of course, that we'll never know what would have become of the remarkable Bobby Kennedy had he lived). So rest in well deserved peace.

Now there is the question of the succession. Teddy was altogether correct in suggesting that it is close to zany (not his words, or course) to wait the statutorily required 145 days (under Mass. law) for a special election, thus depriving Mass. of any representation during the most important debates in many, many years (perhaps decades). Those who are saying that it would be "unfair" to change the rule adopted in 2004 are missing the point that there are real problems when governors change the part of the state's senator simply because of the fortuity of death, as Mitt Romney presumably would have done had Kerry been elected President. Some states, like Wyoming, have very sensible laws (which I, pace Vik Amar, with whom I debated the issue in the Hastings Constitutional Law Journal, believe is perfectly constitional) requiring that the governor pick someone from the deceased senator's own party (indeed, from a list compiled by the state party itself). There is also the spurious argument, adopted by Russ Feingold and the editorial page of the New York Times, that it is somehow "anti-democratic" to have any appointed senators at all. Why it is "democratic" to deprive states of any representation at all for the months required to have a special election is beyond me. And, more to the point, the real idiocy of the Feingold-Times position is revealed, as I've argued several times before, should there be a mass disaster generating a significant number of vacancies in the Senate.

In any event, I hope that the Massachusetts legislature will have the wit to reject the "special electionists" and allow Gov. Patrick to name a worthy successor as soon as possible. Massachusetts needs that; so does the country.


As argued at FairVote (here and here), I don't think the solution is appointment by the governor. I think the solution is having the machinery in place to hold an election quickly. The 145 days mentioned in Massachusetts law (is that really a minimum?) is ridiculous.

I would accept, as a compromise, a provision that the governor name -- at the same time that she calls the special election -- an interim senator (or representative) who is thereby barred from running in the special election itself. The Wyoming provision for naming someone from the deceased office holder's party could also be built into this.

My first choice, a quick election, would be hard sell. It would be opposed not only by election administrators but by party professionals, campaign consultants and the media, all of whom benefit from long campaigns.


While I agree with you that it seems unfair for the voters of Massachusetts to be deprived of a second senator for up to 150 days, it is also unfair for them to be deprived of a senator when he or she becomes incapacitated for a lengthy period of time. Senator Kennedy found out he was sick over a year ago and he also knew that a health care vote was potentially coming up for a vote sometime this fall. He could have resigned sometime last year or early this year and the issue you are discussing would be moot in this particular instance.

It makes me a little sad that many qualified and distinguished residents of Massachusetts never got the chance to serve in the United States Senate because Senator Kennedy believed the seat was a Kennedy seat.

I do not find it anti-democratic that someone the people elected (governor) appoint someone to fill in temporarily until a special election can be held (which will take time, but it need not be 145 days).

Such temporary fill-ins are normal practice in various situations. I am also glad SL disagrees with Prof. Amar, since I found his argument on the point dubious.

As to the second comment, the fact he was sick does not mean he knew he was going to die. As to the last statement, perhaps the problem was the people of MA kept on re-electing him by large margins.

Joe, people in this country reflexively vote for incumbents. Once you are in Congress a few terms, you likely are never going to lose again. This should not be confused with people getting the best representation they can get.

Thomas, Kennedy was a unique senator. He more than others can be said to be the "best" they could have got. Likewise, incumbents tend not to last as long as he did. Again, he did for a reason. And, no, it wasn't merely incumbency.

You are right, Joe. Ted Kennedy was a unique senator. I just have a problem with people hanging on slightly longer than they should. Seems that Robert Byrd is having the same problem letting go. And Strom Thurmond before these two.

Until a very recently, he was a fairly healthy 70 something, and showed no signs of not being able to do his job. Not quite comparable to people who run for re-election at around 90.

Joe, you are just destroying the little argument I have built up in my head. You are a good debator, my friend!

It seems pretty obvious what's going on here.

When the succession law might lead to an outcome you disagree with, you change it.

When the changed succession law leads to an outcome you disagree with, you ignore it.

Before ugly politics surfaces, we here in MA will mourn the loss of our long serving Senator Ted Kennedy. Hopefully the current law will be followed for a fairly quick election. In the meantime, without the heat of political pressures, thoughtful consideration can be given to a change in the succession law that can make sense whether the sitting Governor is a Democrat or a Republican. Neither the nation nor MA will unduly suffer with a short vacancy. Consider how long it took to seat the Senator from MN this year. Acting in haste in MA would become overly political as was the case in 2004.

Meantime, we mourn our loss here in Brookline, in MA, and share this loss with the nation. Ted Kennedy was truly responsive to his constituents.

"Joe, people in this country reflexively vote for incumbents."

Thomas, incumbents have written campaign laws to dramatically disadvantage challengers, to the point where incumbents frequently run effectively unopposed. It's true there is SOME tendency to favor the devil you know, but this country's insanely high reelection rate is scarcely an innocent accident.

Thomas, Kennedy was a unique senator. He more than others can be said to be the "best" they could have got.

Kennedy was surely an accomplished Senator, but it does not follow from that fact that among the millions of residents of Massachusetts, there is not one single person who could do the job as well.

Indeed, one of the problems with our system of career politicians and massive incumbent advantage is that we never get to find out. There could be brilliant politicians in the Mass. state house who can't move up the ladder because of the entrenchment of incumbents.

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I totally agree with Dilan and not just because he said exactly what I was trying to get at except much more clear and concise. Many of us applauded Barack Obama and his quick rise last year but we never would have known about him if Ted Kennedy was the senator in Illinois. Surely someone as intelligent and thoughtful as Obama would find something to do with his life but he probably would have said, "Kennedy is going to be there forever so let me content myself by just being a law professor."

There has to have been another Obama-caliber person in Massachusetts over the last 40-something years. We just never had the privilege of knowing who that person was.

Maybe that hypothetical person could have run against the other, considerably more mediocre Senator.


That might work if there weren't career, decades-of-tenure members of Congress as well. In other words, there are MANY logical steps on the ladder that are taken up by various people who are hard to displace. That doesn't mean that it is impossible for a young politician to rise up the ladder, but it makes things more difficult and means that the politician needs to get a lot luckier. (As, indeed, Obama was.)

The point is, there are probably plenty of talented politicians in Mass. (or any other state) who haven't become senators simply because they were not in the right place at the right time. And therefore, it really isn't right to assume the indispensability or uniqueness of Ted Kennedy, even though he was a very accomplished legislator. If he hadn't been there, it's entirely possible that another promising politician would have had the opportunity to serve in the Senate.

I don't btw "assume the indispensability or uniqueness of Ted Kennedy" though Dilan first called him "accomplished." Now it's "very accomplished." This might get closer to someone, wrongly or not, people put in top five of senators of all time. Statistically, that is not very far from "unique," if one considers the point.

Overall, he's not the best to use as an example on the incumbent front. Thomas, cheers!, now tries to use Obama as evidence. Given Obama's youth and general inexperience, even w/o incumbency, Obama very well might have not become senator without a lot of luck. A strong two term senator -- is that too much of an incumbent ? -- could have did the trick.

I think the power of incumbency is a problem, though term limits don't seem -- for various reasons -- the answer. Challengers have any number of burdens, some unfair, to deal with. Challenging lions of the Senate, who continue to show skill in spades (not just a hanger on like Strom or Byrd*), is something I'm willing to allow.


* I'm all for parties who are strong enough to somehow kick these people out. Still, I think the people of the state as much as anyone is to "blame" here.

Strom, though someone from the state once told me was dead and just propped up at the end (she is a Dem.), was a cultural icon of the state. Tradition as much as the powers of incumbency per se helped him hang on.

PS If there is someone better than Kennedy, I reckon s/he would have found a means to shine in public service and politics.

Senators in my state, e.g., have been know to take the carpetbag route when necessary. There are other ways too.

I have a great deal of sympathy for the arguments of Dilan and Thomas. However, the Senate was intended to be occupied by older persons and Senators were expected to be there a long time (some at the Convention favored life terms). See Federalist 62 and 63. Even from the beginning, Senators tended to hold the job much longer than Representatives (think Daniel Webster as the equivalent of Kennedy).

The justification for this was that the Senate would provide stability and worldly experience to offset the passions of the electorate.

The current situation serves these ends perhaps all too well, but it does serve them. And reasonable people can differ on where the dividing line should be.

The problem with Joe's argument is that it is a total counterfactual. The reason there is nobody who is "better" than Kennedy, if true, is because we didn't allow someone else to come up the ranks and prove it. Obama is an exceptional politician, but under different circumstances, he might be an unknown member of the Illinois state legislature right now.

And the problem with Mark's argument is that just because the framers saw the Senate that way doesn't really justify it, especially since (with the exception of First Amendment limitations on campaign finance laws) incumbency protection is not written into the Constitution.

It may be a fine policy for a state to require the Governor to pick a temporary replacement of the same party as the prior occupant of the seat (though, like Amar, I have doubts about its constitutionality). But surely Professor Levinson isn’t suggesting that the 2004 change represented some sort of principled application of such a policy. Had the Governor been a Democrat, the legislature would not have changed the law in 2004, and it didn’t adopt a law like Wyoming’s, suggesting that it didn’t even want Romney to appoint a Democrat of his choosing.

Sometimes the law allows politicians to make arbitrary changes for the purposes of entrenching their own power (see the Texas mid-decade redistricting). Lets not pretend, however, that they are doing anything more noble than that, or try to help them out when their plans backfire.

Joe's argument is better, I think, than a "mere" counterfactual. He is making an assumption that EMK was one of the very best Senators ever. If that's true, the odds that another such Senator is available in MA now are fairly small.

I certainly agree that we're not bound by the original purpose of the Senate merely because they said so. I'm no originalist on any issue, including this one. Those who are, though, may find that the Federalist set forth the original public understanding which should guide us.

The issue for non-originalist me is whether Publius was making a good argument about the stability provided by older, long-serving Senators. I think there's some justification for that, but reasonable people can certainly disagree on the boundaries.*

I completely agree that incumbency protection serves no purpose whatsoever and is inconsistent with an electoral system.

*My personal preference would be to impose a 3 term limit on Senators along with an upper age restriction of 75.

Mark, the problem is that since only 100 people get to be Senators, they serve 6 year terms, and most of them serve multiple terms, it is entirely possible for both (1) Teddy Kennedy to be one of the best Senators ever (he is not, of course, though he was a fine Senator-- that's a different discussion though and we can assume that he was here) and (2) for there to be plenty of others in Mass. who could have been a great Senator.

I live this very paradox. I work in Henry Waxman's Congressional district. Waxman is a very successful Congressman. (He's also the reason we don't have good public transportation in Los Angeles, but we'll leave that aside as well.) But if you know anything about the demographics of his congressional district, you'd know that the notion that nobody else here could do his job well is absolutely preposterous.

Same with Mass. You are telling me, for instance, that none of the tens of thousands of Harvard or MIT graduates who stayed in Boston or Cambridge could do Kennedy's job as well as he could? Come on!

The fact of the matter is that it is perfectly consistent to say that Kennedy is a very good Senator and that there are lots of other Massachusetts politicians and successful individuals who could his job well as well.

I agree that there are other residents of MA who could be good Senators. I also agree that other residents of West LA could do as good a job as Henry Waxman; hell, I'd be much better than Jane Harman.

But that doesn't account for electoral politics. The existence of such a person doesn't mean s/he is likely to be elected, even in a perfectly fair system. S/he may not be interested; may not have sufficient connections; may not be funded; etc. Taking all these into account, in actual practice it may be hard for MA to come up with another Senator who would represent its interests as well as EMK did.

But while I can see this argument, in the end I favor a higher turnover of Senators than is common now. IMO, the loss of an occasional great Senator is more than outweighed by the opportunity for others and the variety of views they'd express.

First off, Dilan disagrees ["of course"] with the idea that TK is one of the best senators ever. Sandy Levinson is far from alone in disagreeing with this.

Repeatedly, he is put in the top five. Dilan has every right to disagree, but this is not just my assumption. I also think this disagreement alone might color the discussion some.

Second, my argument is not really a "total counterfactual" as MF suggests. I am comparing him, using popular rankings btw, to other senators. Even with the power of incumbency, few served as long as he with a similar productive reign to the end.

Dilan is left with using probability. Cf. how de facto term limits led to loads of great presidents over the years. After all, so many more political science majors and all had a chance since one had to run every eight years.

I don't know what the reference to Obama proves except that any number of things blocks/advances a career.

As MF notes, politics is hard. So, chances are those thousands will mostly not have a chance for any number of reasons. If Kennedy could not be there, very well he could have played a kingmaker role. Look what happened after all when JFK stepped down! Will the new rule not only be anti-term limit, but per-Thomas' original complaint, anti-nepotism?

A three term limit, particularly with rotation of some sort (Kennedy would have been 48 at the end of it; if he had to sit out for a few cycles ...), is probably a workable idea. The people, however, don't seem to be overly excited about it.

They surely are not overly excited about ensuring someone new replaces a few greats like Kennedy. There is something to be said for the experience function that MF notes. Control of the Senate turned over three times since the mid-1990s. New blood has come in repeatedly.

Not in MA particularly, but many other states. But, the matter is open to debate surely. The "loss" to MA however in this case remains much more dubious.

Before one can become a great Senator, one must first get elected. It takes a great deal of money, and more, to get elected. Sometimes the successful candidate has personal wealth to prime the pump. How often have we been reminded of how much time a Senator has to spend raising campaign funding looking ahead to the next election even though the Senator's term is for 6 years? Is it greatness that attracts the money or is it the money that eventually permits for greatness? And do people contribute primarily because they are civic minded or because they expect some benefit, directly or indirectly? Campaigning has become so expensive that even wealthy candidates are required to spend a great deal of time raising funds. That time is taken away from serving the Senator's constituency and the public interest. So greatness is comparative, sometimes the luck of the draw (i.e., the state), and highly subjective. Let's talk baseball - Ruth? Williams? Mays? Aaron? Who's best? Success is being in the right place at the right time - and then doing the right thing. Ted Kennedy was successful.

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Let's talk baseball - Ruth? Williams? Mays? Aaron? Who's best?

This one I do know the answer to: Mays.

"These are names only from earlier years. By mentioning some, one risks unintended omission of others equally celebrated."

To paraphrase The Brethren, I thought we were talking law here, not playing with baseball cards. :)

At such a lofty political strata, as the Empire’s Senate, it is always only either Hitler Dee or Hitler Dum.


Politics may be hard, but there are plenty of great legislators working in state legislatures, county commissions, and city councils, as well as the US House of Representatives. Plus people who aren't right now in politics but who work in business or law and could do the job. There's no reason to think that Ted Kennedy is sui generis, even if one shared your opinion as to how great the man was.

The reason this may not hold true for the Presidency is that the Presidency is a much harder job than being a member of the Senate.

Also, remember that a rule that might force Ted Kennedy out of the Senate might also force all sorts of deadweight out of the Senate as well.

Actually, there are various reasons to suggest -- which is why people have ranked him in the top five -- to think TK is (to some real extent) sui generis. This doesn't mean no one can replace him, but it does mean he is very special.

The Presidency is harder, but given the bunch we had, there is no real reason to think loads of others could have done as good or better than many we had. Any number of barriers stopped this from being the case, ditto as to senators.

I'm aware a rule that leads to the removal of TK would apply to others less worthy. I'm unclear how we would go about it though. Remember how he got in? Do you think if he was term limited any one of those myriad of options would step in, or -- in many cases -- a relative, close associate, and so forth.

I saw this locally, to add to your personal example. A local rep retired. His daughter stepped in.

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