John Lynch is the Democratic Governor of New Hampshire. Republican Judd Gregg told Lynch and President Obama that he, Gregg, would only give up his Senate seat to become Commerce Secretary if Lynch named a Republican to succeed him. The quid pro quo was fulfilled when Lynch named former Gregg staffer and Republican Bonnie Newman to represent the Granite State. Newman is a moderate who backed Lynch for Governor and as part of the deal has agreed not to run for the seat in 2010. Meanwhile, Wisconsin Senator Russ Feingold has argued that all of this deal-making simply underscores the need for an amendment that would require runoff elections for open Senate seats, stripping Governors of the power to make even the interim appointments they now make.
The deal that led to Newman-for-Gregg is certainly unusual but is it comparable---as the title of this post provocatively asks---to Rod Blagojevich's efforts to sell Barack Obama's vacated Senate seat for something that would benefit him? The obvious difference is that Blagojevich sought personal gain in exchange for the nomination---a well-paying sinecure for himself or his wife. By contrast, Lynch got nothing personal. All of the relevant actors in the deal---Obama, Gregg, and Lynch---were seeking to advance their respective political/policy agendas: Obama wanted Gregg because he thought him well qualified and to demonstrate bipartisanship; Gregg also wanted to display bipartisanship and presumably prefers being a Cabinet Secretary to being a member of the clearly minority party in the Senate; and Lynch was happy to facilitate his party's interest (by helping Obama and by selecting someone less conservative than Gregg who will abandon the seat soon enough) and his state's interest (by putting someone from New Hampshire in a powerful position in the administration).
That is a very important distinction---not only in principle but in law---but we still might worry that the deal departs from how Governors should go about picking interim Senators. The Constitution does not expressly constrain their discretion at all in this regard, but that doesn't mean that there aren't better and worse ways to go about picking an interim Senator. I can think of three plausible approaches (which may overlap to various extents in particular cases):
1) Name the person who you, the Governor, believe would do the best possible job;
2) Name the person who you, the Governor, think would best advance the interests of your party by, for example, retaining the seat when it soon comes up for election;
3) Act as the voters' surrogate and name the person who you, the Governor, think best approximates the views, values, temperament, and politics of the Senator you are replacing. (By this measure, for example, David Paterson should have asked himself who is most like Hillary Clinton, or perhaps he should have asked who Eliot Spitzer would have thought is most like Hillary Clinton).
Although one can make an argument that Lynch's agreement to name a Republican to replace Gregg was, on balance, beneficial (given Lynch's view of the public interest), it is hard to argue that this sort of dealmaking honors any appropriate conception of how a Governor should exercise the appointment power. Consider a somewhat fantastical hypothetical example: Suppose Gregg had simply retired from the Senate for personal reasons; suppose further that a wealthy eccentric offered to donate $20 billion to finance health care and education projects for New Hampshire, on the condition that Lynch name a Republican to the Senate to replace Gregg. Even though the deal would not benefit Lynch personally and even though it might be a net boon for New Hampshire, is there any doubt that Lynch would be acting wrongly in accepting the deal? And is the actual deal to which he agreed so different?
To be sure, in my hypothetical case, Lynch would score political points as the Governor who landed the $20 billion for New Hampshire's needs, but in the actual case too, Lynch scores some political points that may help him down the road with New Hampshire voters. The point is not that Lynch's agreement to the deal is nearly as bad as what Blagojevich attempted. It clearly is not. But one would hope for more from our politicians than they merely be not as bad as Blagojevich.
Posted by Mike Dorf