Senatorial Incapacity Or, Why John McCain Should Not Be Casting Votes

by Diane Klein

On May 30, 2017, my 77-year-old father died, of an aggressive adenocarcinoma that began in the pancreas and metastasized to, among other places, his brain. His cancer was diagnosed March 19, 2017, and he underwent brain surgery on March 29, 2017, to remove a tumor the size of walnut (or a golf ball - it's all foods and athletic equipment with these things) from between his frontal lobes.  The craniotomy and brain surgery were a "success" - he healed more or less without incident, and when he died, you could hardly see the scar.

Why do I mention this? Two reasons.  First, it allows me to be critical of a terminal brain cancer patient like John McCain without seeming callous. (Though not quite as critical as this guy.) But second, although my father's cancer was of a different kind than McCain's, my interaction with him gave me an up-close look at a smart, strong, but sick and elderly man laboring under a brain disorder of whose cognitive consequences he seemed not entirely aware.  And it gave me a chance to witness the dynamic by which the patient and those closest to him conspire so that everything can feel like things are still normal.

That the loved ones of a dying man want desperately to believe that he is or will be "fine," and ignore evidence to the contrary for as long as they can, is sad but natural and understandable.  That the Senate Republicans (and, it seems, many Democrats) are willing to do the same, for political ends - for Republican healthcare legislation, no less!, is simply ghastly.  McCain should have stepped down upon receiving this diagnosis and anointed a successor.  He is not fit to serve, or to vote in his representative capacity - no matter how useful Republicans may find him.

In February and early March 2017, my father had not felt well - he had a pesky cough, and his color was lousy.  He seemed uncharacteristically tired and logy.  Yet in speaking with him around the time of his diagnosis and afterwards, the medical personnel never doubted his capacity (medical or testamentary) for a moment.  My father was educated as an engineer, and ran a small computer support business until just weeks before his hospitalization. The brain surgeon joked good-naturedly about how smart my father was, how easily he understood the medicine, the science, the procedures.  He still seemed, to some of these people, to be that same guy.

And to people who had never known him before 2017, I'm sure he was.  But for my sister and me, who'd known him all our lives, we knew better.  He was, to us, quite obviously what we described to each other as "vague" - slower on the uptake and slower to respond, markedly less articulate.  More forgetful and disoriented.  While to others he might have seemed simply quiet or taciturn, or tired (and he was all of those), to us he was clearly struggling, caught in a state something like the way you feel just upon waking, before your head clears - except it went on and on.  When he couldn't remember the master password for his laptop - a password he had used literally thousands of times, and which I needed to access vital information - I knew we were in real trouble.  When I picked him up after an overnight hospitalization and he looked at the clock in his room reading 3:00, and asked me "am or pm?," that sense intensified.

The day before he had brain surgery, I spoke with him in an outside atrium at the hospital - the first sunlight he'd seen in ten days.  There were some documents to execute, but I also wanted to ask him how things seemed to him.  Did he seem "different" to himself?  No, he told me, in the same delayed way.  Not long afterwards, I felt that an incapacity determination might be appropriate, related to his resignation from the revocable trust of which he was sole trustee. Without speaking to me first (despite my request that she do so), the hospital psychiatrist met with him.  She later relayed back to me her confidence in his capacity, his description of his estate plan, and his desire not to change it.  Which was all well and good - except that the description he'd given her so clearly and confidently was not actually correct.  It was greatly oversimplified, in ways that actually mattered.

Estate-planning lawyers and law professors spend their share of time worrying about things like testamentary capacity, and what it requires; it is notoriously a rather low level of capacity, below (for example) contract capacity.  Election lawyers, by contrast, worry about different dimensions of voter qualification and eligibility.  No one thinks too much about mental capacity to cast a vote - either as an individual, or as an elected representative.  But perhaps we should.

Federal election law permits states to renders voters ineligible based on "mental incapacity," but says nothing about the appropriate standard. Disenfranchisement based on mental incapacity warrants barely a page of a leading election law casebook, but a 2007 McGeorge Law Review article explores the topic more deeply.  The issue is understood, quite properly, as mostly a disability rights concern, and state law has increasingly recognized that persons under guardianship of person or property may still be able (and entitled) to vote.  The authors of the article suggest that "If there is to be any limitation based on incapacity, it should be narrowly circumscribed in terms of a specific focus on the capacity to understand the nature and effect of voting."

Whatever the significance of individual votes and voters, we may not be too troubled by the risks associated with mentally incapacitated individuals casting their own votes and changing outcomes, compared to the civil rights dimensions of maximum participation by all members of the electorate.  The mentally ill and mentally disabled face so many obstacles and so much stigma that efforts to include them in the life of the polity, when possible, should be applauded.

But that is different than serving as an elected representative, with duties to a constituency and country (and arguably, to party). For John McCain, senior Senator from Arizona, voting is not an expression (merely) of personal preferences and opinions. He has been charged by the voters with the exercise of discretion and judgment in the carrying out of his duties. In the first week of June, six weeks before his diagnosis, McCain's questioning of James Comey was charitably described as "bizarre."  Although later played off as mere "tiredness," it is safe to say his glioblastoma (however fast-growing) did not develop overnight - and it is not meaningfully curable or treatable (median survival is 14.6 months from diagnosis).  This week, he flew across the country to vote in the Senate - first disparaging the process, then voting the bill forward for discussion, and then voting against it. The actions of a sometimes "maverick" who has often talked tough and then toed the party line?  Or those of a desperate and dying man, endeavoring to look like he can still perform his duty while staring death in the face, as he did as a young POW?

Section IV of the 25th Amendment allows persons other than the President to declare the President "unable to discharge the powers and duties" of the office; it recognizes that an incapacitated President might not recognize himself as such, or might refuse to step down even if he did. Some have wondered if Ronald Reagan's early Alzheimer's condition might have warranted using this Amendment.  But it has no counterpart in the Senate - only the political and party processes, along with individual judgment.

Even in the last weeks of his life, my father could still discourse on lots of subjects intelligently.  The further removed from his own condition, and his own imminent demise, the more fluent and engaged he seemed. Perhaps the Senate and its procedures seem to McCain utterly disconnected from his own deteriorating health; perhaps he perceives no irony in having received a level of health care that is enabling him in any sense to carry on, despite this diagnosis, in the Republican project of dismantling that selfsame health care for the neediest Americans.  But even as McCain prepares to slip the surly bonds of earth, it seems Sen. Mitch McConnell just wants him for his vote - one he may not be in any condition to cast responsibly.