Sen. Tim Johnson (D-SD) has been stricken with a stroke-like illness. Though it is far too soon to tell, let’s say he can’t take his seat in January, and leaves the Senate.
If the Republican governor appoints a Republican to hold the seat, the Senate is tied again, and Cheney controls, and so on, and so forth. So, the question is:
Should the Republican governor of South Dakota ethically have to appoint a Democrat to replace a Democrat?
It’s not going to make a whole lot of difference if the Senate flips back. One chamber is enough for blocking the Republicans and conducting investigations. And with Bush’s veto it’s not like the Democratic agenda was going to get very far over the next two years anyway.
That’s a tough one, and I had to think pretty hard before coming to my answer! At first, I thought “yes”-- ethically he should appoint a Dem. But the voters elected him with full knowledge of what his duties were as Governor, and one of his duties is to appoint Senators under certain conditions. And if they didn’t have that “full knowledge”, then that’s their fault, not his. So, a Pubbie it is, and that’s fine, ethically as well as legally.
I’m not bothered by the fact that the Governor gets to temporarily fill the vacancy; what’s interesting is the apparent contradiction in how long that temporary appointment would be good for. Because here’s what SD state law says about filling a U.S. Senate vacancy:
I think the lawyers are gonna have fun with this one. Suppose Sen. Johnson dies or is found to be permanently incapacitated before the next Congress commences. His seat would be vacant no later than the first day of that Congress. According to §12-11-1, the governor would have to hold an election for Senator within ninety days afterwards. But according to §12-11-5, the election wouldn’t be until November 2008. Clear as mud, huh? In the meantime, whatever the ‘meantime’ was decided to be, the (Republican) Governor would get to fill the vacancy with his own choice.
Though I think the question is moot (from what I’ve read I expect Johnson to make a full recovery…and am glad of it), I’d have to say that I DO think the Governor has an ethical responsibility to appoint someone from the same party. I don’t think that would happen (in fact, I’d bet the farm that it won’t, regardless of what party we were talking about in this scenerio)…but the voters in the state had spoken and I think that it would be wise to heed them. And I think that doing so would be a HUGE boost the the Governor in question…just boat loads of kudos IMHO.
It could get even more interesting - the Senate could jump into the game, concluding that §12-11-1 was controlling, and refusing to seat the Governor’s replacement until the Governor set a date for a special election pursuant to §12-11-1. Because as the Constitution (Article I, Section 5) says, “Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members,” so by the 50-49 Democratic majority, the Governor’s temporary replacement could be stiff-armed as long as the Governor didn’t meet the majority’s terms.
Although control of the chamber was not at stake, it’s worth noting that the last two Senators to die in office were replaced by men of a different party. Democrat Zell Miller was appointed to Republican Paul Coverdell’s seat in Georgia in 2000, and Dean Barkley of the Independence Party was appointed by Minnesota Governor Jesse Ventura to finish out Paul Wellstone’s term (although there were only a couple months left in the term).
Nice research for the former, and “I disagree” for the latter. It certainly seems from 12-11-5 that the legislature intended for the governor to be able to make an appointment that would hold (in this case) till the general election in '08. But 12-11-1 certainly says “Senator”. Hmm.
Well, the latter part of 12-11-1 specifically refers only to a “representative”, thus I believe that it does not affect a Senatorial election, which is covered in 12-11-5.
To all: I understood at the time I posted the OP that Johnson had not had a stroke, nor was he in danger. Nevertheless, I thought it made a nice question.
Can we really conclude that yet? I don’t think anyone can assume that Sen. Johnson’s out of the woods at this point; can’t assume that at this point and he’s not out of the woods at this point.
Also, think about this…even if Johnson were rendered paralyzed and mute by whatever this was, he could still be a senator. Hell, Strom Thurmond was practically embalmed and he stood his seat until Nature found his Undead status too galling to take.
