[QUOTE=Lemur866]
the contention that the SD legislature WOULD have put a provision that the governor must choose a member of the incapacitated senator’s party, if only they had thought of it, is simply ludicrous. Several states have such a provision.
[/QUOTE]
“Several” being “three that we know of, and none that we know were in effect in 1979, and that the SD legislature knew of then.”
[QUOTE=RTFirefly]
“Several” being “three that we know of, and none that we know were in effect in 1979, and that the SD legislature knew of then.”
[/QUOTE]
Is there something that prevented the SD legislature from amending that provision after 1979?
The last time that SD voted for a senator they elected a Republican … I guess that settles it.
[QUOTE=jayjay]
Also, think about this…even if Johnson were rendered paralyzed and mute by whatever this was, he could still be a senator.
[/QUOTE]
Ah… But consider the delicious potential of breast-beating & conscience-wracking across the Left should he drop into…
A Persistent Vegetative State.
Half the country will be struck with moral whiplash from the resulting position-turnabout.
WaPo:
I disagree with that second paragraph. There’s no Senate rule allowing or blocking Johnson’s replacement on the basis of incapacity to serve. But there doesn’t need to be - the Constitution gives the Senate the power to do so.
However, saying the Senate has no rule enabling Johnson to be replaced will certainly give Reid some room to stall on replacing Johnson if he should prove to be permanently incapacitated.
Reid today:
[QUOTE=John Mace]
Is there something that prevented the SD legislature from amending that provision after 1979?
[/QUOTE]
No, nothing at all.
The problem is, it’s even harder to impute intent to inaction of the “they haven’t taken up legislation dealing with that general subject in decades” type than to inaction of the “when they revised those sections of the SC Code, they didn’t include a provision of this kind, and we have no idea whether it even crossed their minds to consider it” type. And that’s what my discussion with flurb and Lemur866 is about: what in the way of intent can be read into the SD legislature’s inaction.
[QUOTE=What the … !!!]
The last time that SD voted for a senator they elected a Republican … I guess that settles it.
[/QUOTE]
Settles what?
[QUOTE=Tygr]
Ah… But consider the delicious potential of breast-beating & conscience-wracking across the Left should he drop into…
A Persistent Vegetative State.
Half the country will be struck with moral whiplash from the resulting position-turnabout.
[/QUOTE]
Except not. The issue with the Terry S. case was the ability to refuse care, not “we should kill everyone in PVS.” It’s the religious nutjobs who claimed that was the issue, but then, misrepresenting the positions of the opposition is what they do.
[QUOTE=RTFirefly]
No, nothing at all.
The problem is, it’s even harder to impute intent to inaction of the “they haven’t taken up legislation dealing with that general subject in decades” type than to inaction of the “when they revised those sections of the SC Code, they didn’t include a provision of this kind, and we have no idea whether it even crossed their minds to consider it” type. And that’s what my discussion with flurb and Lemur866 is about: what in the way of intent can be read into the SD legislature’s inaction.
[/QUOTE]
Um, partisan politics wasn’t invented in 2000. They had it back in the old-timey days of 1979 too. The idea that a governor and an incapacitated Senator might be of different parties is surely not an outrageous one that would never occur to the simple-minded country folk of South Dakota.
The South Dakota legislature has the power to change the law to require that a replacement Senator be of the same party as the incapacitated Senator. They have not done so. Absent that, the governor has no ethical obligation to choose someone of the same party.
The governor does have an ethical obligation to the wishes of his constituency. If an overwhelming majority of South Dakotans would be outraged by a party switch, he’d be a fool to disregard that. But I don’t think that’s actually the case. The fact that the voters of South Dakotan elected a Republican as governor indicates that they would not be outraged by being represented by a Republican. South Dakota certainly isn’t exactly a Democratic bastion, if it were, they would have elected a Democratic governor.
We have had numerous examples of appointees to various positions being of different parties than the people they replaced. It is not an unforseen or unforseeable circumstance. It is not unethical. To argue otherwise is simply bizarre. The particular law in South Dakota does not violate any ethical principles.
[QUOTE=RTFirefly]
I personally think it’s silly to read much intent into a failure to anticipate all consequences of a rarely-occuring situation when writing legislation to deal with it.
[/qUOTE]
The situation isn’t that rare.. It’s already happened twice this decade.
When Republican Senator Paul Coverdell of Georgia died, Democratic Governor Roy Barnes appointed “Democrat” Zell Miller to replace him. (Of course, Zell Miller made a hard-right lurch and became a virtual Republican when he got into the Senate, but Barnes had no way of knowing that would happen. Zell had been a progressive Democrat when he served as governor.)
Have you all forgotten that there is no South Dakota?
Though that might change soon . . .
[QUOTE=RTFirefly]
No, nothing at all.
The problem is, it’s even harder to impute intent to inaction of the “they haven’t taken up legislation dealing with that general subject in decades” type than to inaction of the “when they revised those sections of the SC Code, they didn’t include a provision of this kind, and we have no idea whether it even crossed their minds to consider it” type. And that’s what my discussion with flurb and Lemur866 is about: what in the way of intent can be read into the SD legislature’s inaction.
[/QUOTE]
We needn’t read intent into inaction, since we have action. They intended the Governor to make the decision. But then, I’m a textualist. 
[QUOTE=spoke-]
The situation isn’t that rare.. It’s already happened twice this decade.
When Republican Senator Paul Coverdell of Georgia died, Democratic Governor Roy Barnes appointed “Democrat” Zell Miller to replace him. (Of course, Zell Miller made a hard-right lurch and became a virtual Republican when he got into the Senate, but Barnes had no way of knowing that would happen. Zell had been a progressive Democrat when he served as governor.)
[/QUOTE]
One key fact in my post is “1979,” the year the SD legislature apparently revised this part of their state code. At that point it was rare.
[QUOTE=Lemur866]
The idea that a governor and an incapacitated Senator might be of different parties is surely not an outrageous one that would never occur to the simple-minded country folk of South Dakota.
[/QUOTE]
Please note what I said before your first post:
Read. Then respond.
[QUOTE=John Mace]
We needn’t read intent into inaction, since we have action. They intended the Governor to make the decision. But then, I’m a textualist.
[/QUOTE]
True dat, in a general fashion. But were they thinking about a situation where the governor’s choice might change control of the U.S. Senate? We have no evidence on that, one way or the other; there’s really no reason to think they were anticipating all the potential consequences of such a law. And that’s my point.
So then your argument isn’t that it’s unethical to appoint someone from a different party, it’s only unethical if said appointment would change which party had the majority?
How about when Jeffords defected from the Republican party and gave the Democrats control of the Senate? Was that unethical of him? After all, his constituents elected a Republican. Was Jeffords ethically obligated to caucus with the Republicans then?
The fact that an appointment might change the majority party is irrelevant, because Senators are not themselves bound to support any one party.
[QUOTE=RTFirefly]
True dat, in a general fashion. But were they thinking about a situation where the governor’s choice might change control of the U.S. Senate? We have no evidence on that, one way or the other; there’s really no reason to think they were anticipating all the potential consequences of such a law. And that’s my point.
[/QUOTE]
I agree that we can’t assume that the legislators considered all possible situations. But I don’t think that really comes into it from an ethical standpoint anyway-- at least not in this situation. The good folks of ND elected one Senator at the time, and it’s not their job to determine who does or does not control the Senate.
[QUOTE=RTFirefly]
The Senate Dems (still in a 50-49 majority, with the right to determine Senatorial qualifications) could do a straightforward deal with the SD Gov: vote to declare a vacancy only if the Gov agreed to appoint Rep. Stephanie Herseth (D-SD) to Sen. Johnson’s seat. That would keep the Senate in Dem hands, but give the GOP a shot at SD’s sole House seat as a consolation prize.
[/QUOTE]
That’s a pretty crappy consolation prize: Republicans might weaken the 30-seat Democratic majority in the House slightly, in exchange for giving up a chance to keep control of the Senate? Not a chance in hell. And you can quote me on that.
[QUOTE=RTFirefly]
The Senate Dems (still in a 50-49 majority, with the right to determine Senatorial qualifications) could do a straightforward deal with the SD Gov: vote to declare a vacancy only if the Gov agreed to appoint Rep. Stephanie Herseth (D-SD) to Sen. Johnson’s seat. That would keep the Senate in Dem hands, but give the GOP a shot at SD’s sole House seat as a consolation prize.
[/QUOTE]
That’s a pretty crappy consolation prize: Republicans might weaken the 30-seat Democratic majority in the House slightly (though Herseth had a margin of 40% in November), in exchange for giving up a chance to keep control of the Senate? Not a chance in hell. And you can quote me on that.
Sorry if this goes through twice; my browser stalled.
[QUOTE=RTFirefly]
One key fact in my post is “1979,” the year the SD legislature apparently revised this part of their state code. At that point it was rare.
[/QUOTE]
I don’t follow you. Senators die in office on a regular basis. It happened eight times in the 1970s, leading up to that 1979 revision of the code.