Massachusetts Governor Deval Patrick's selection of Paul Kirk as interim Senator pending a special election to fill the seat left vacant by Ted Kennedy's death provides an opportunity to consider the constitutionality of a phenomenon I'll call "expedient law switching." Readers will recall that back when John Kerry was running for President, Massachusetts Republicans urged changing the law so that the governor--then Republican Mitt Romney--would be able to name an interim replacement. The majority-Democratic legislature declined to do so, although the point proved moot when President Bush won the 2004 election.
But the law left Massachusetts with a problem: when Ted Kennedy died, it was going to have only one Senator for the many months it would take to organize a special election. And so, presto!, the majority-Democratic Massachusetts legislature obliged by giving the now-Democratic governor the power to name an interim Senator, which he just did. Republicans in Massachusetts (yes, there are still some) are crying foul. Are they right?
Let's consider the general phenomenon of expedient law switching. Suppose that an ordinance in the small town of Racistville provides that "no building permits shall be granted for any structure to be erected within 100 feet of the shore of Racist Lake." Now suppose that whenever a white landowner seeks to build a lakefront house, the town council convenes and repeals the ordinance, whereupon a permit is granted by the mayor. Immediately thereafter, the council re-enacts the ordinance (which applies only prospectively), and does not re-repeal the re-enacted ordinance when non-white landowners want to build by the lake. In this example, the "real" law in Racistville is "no building permits shall be granted to non-white property owners for any structure to be erected within 100 feet of the shore of Racist Lake." And this "real" law would be a violation of the constitutional requirement of equal protection. (Larry Alexander wrote an excellent paper on this phenomenon some years ago.)
So, what is the "real" law of Senatorial succession in Massachusetts? The answer isn't entirely clear, partly because one switch doesn't establish a pattern. But there seem to be two main candidates. One characterization is this: 1) Democratic but not Republican governors can appoint interim Senators to fill vacancies pending a special election. But another possibility is this: 2) When the governor is a member of the same political party as a Senator whose seat has become vacant, the governor can appoint an interim Senator to fill a vacancy pending a special election. "Real" rule 1 is highly problematic as a matter of equal protection (or the right to vote, or whatever), while "real" rule 2 is much less problematic because it has a legitimate justification: The people elected a Senator of Party X to a 6-year term, and until they elect a Senator of Party Y, that choice should be respected, or at least not contradicted.
How can we figure out what the "real" rule is in Massachusetts? One clue will be provided by whatever the legislature does next. If they are especially shrewd, then before the next gubernatorial election they will repeal the law that authorized Kirk's appointment. That way, if another Republican becomes governor, he'll be stuck with the Romney rule. (It would be too late to repeal the authority once the Republican won the governorship because he would then veto the proposed change.) Meanwhile, if another vacancy opens up on a Democratic governor's watch, the law authorizing interim appointments could be re-enacted. I'm betting that the Massachusetts legislature doesn't try this maneuver, and if it doesn't, that will be pretty good evidence that the "real" law in Massacusetts isn't nearly quite so problematic as the "real" law in the hypothetical racistville.
More broadly, though, it will be hard to identify "real" laws of this sort, for reasons similar to the reasons why it is hard to win a case that depends on proving impermissible selective enforcement of a facially valid law.
UPDATE: As a reader points out in the comments, the Mass. legislature actually CHANGED the law to de-authorize appts by Romney when he was governor, and given the overwhelming Dem majority in the Mass. legislature, they could wait for a Republican governor to repeal the interim appointment power, and then override his veto of the repeal. So we have 2 switches, not 1. I think this makes the Mass. case more interesting, although it still doesn't fully distinguish between interpretations 1 and 2. Denying a Republican qua Republican the power to make interim appts is highly problematic; denying a governor the power to appoint a replacement for a Senator of a different party is much less problematic. Of course, we KNOW that the Mass. legislature is really pursuing party advantage, i.e., that interpretation 1) is correct; that's what legislators do (whether D or R). But proving that and coming up with an appropriate judicial remedy are so daunting that cries of foul would seem to have to be addressed to the public generally rather than to the courts.
Posted by Mike Dorf