Governor Patrick Appoints Interim US Senator

By: Michael C. Bailey
Published: 09/25/09

Following a speedy approval process in the Legislature, Governor Deval L. Patrick yesterday named Paul G. Kirk Jr. of Marstons Mills to temporarily fill the late US Senator Edward M. Kennedy’s seat.

“For the next few months, he will carry on the work and focus of Senator Kennedy, mindful of his mission, his values and his love of Massachusetts,” Governor Patrick said at yesterday’s press conference, where he was flanked by Mr. Kirk and US Senator John F. Kerry, who said Mr. Kirk would be “a superb steward” for the post.

Mr. Kirk is a former chairman of the Democratic National Committee and chairman of the John F. Kennedy Presidential Library Foundation. In the days preceding the announcement he and former Massachusetts governor Michael S. Dukakis were considered the two most likely candidates, but Mr. Kirk’s appointment was championed by no less than Mr. Kennedy’s widow, Victoria Reggie Kennedy, and his two sons, Edward Kennedy Jr. and Rhode Island Congressman Patrick Kennedy.

The announcement came less than 24 hours after the House and Senate met in joint session to approve a US Senate succession bill. The final bill passed in a vote of 95 to 59 in the House, 24 to 16 in the Senate. Senate President Therese M. Murray, State Senator Robert A. O’Leary (D-Barnstable), and State Representatives Demetrius J. Atsalis (D-Barnstable) and Matthew C. Patrick (D-Falmouth) voted in favor of the measure.

State Representatives Susan D. Williams Gifford (R-Wareham) and Jeffrey D. Perry (R-Sandwich) voted against the bill, and State Representative Timothy R. Madden (D-Nantucket) did not vote on the main proposal.

Governor Patrick’s appointment was not without controversy due to his decision to declare the vacancy “an emergency,” which allowed him to immediately enact the law.

Normally, a law does not take effect until 90 days after it has been signed into law. If this bill were to undergo that waiting period, the appointment could not be made until December 22, about a month before the January 2010 special election at which voters will choose someone to fill the seat for the remainder of the term. The primary is scheduled for December 8.

The Legislature attempted to attach an emergency preamble to the bill, which would have allowed it to go into immediate effect, but that amendment failed to receive the necessary two-thirds majority vote to pass.

Governor Patrick named Mr. Kirk the new interim senator over objections from Republican lawmakers and the Massachusetts Republican Party, which challenged the governor’s authority to declare an emergency in light of the Legislature’s failure to pass an emergency preamble.

Four Republican legislators, including Mr. Perry, signed onto a letter to the governor requesting that he seek an advisory opinion from the Massachusetts Supreme Judicial Court before making his appointment.

Jennifer A. Nassour, chairman of the Massachusetts Republican Party, wrote to William F. Galvin, secretary of the Commonwealth, asking him to reject Mr. Patrick’s letter stating his intention to declare an emergency and seek an advisory opinion from the SJC.

Mr. Kennedy, in a July letter to legislative leaders, asked the Legislature to consider allowing interim appointments, citing the importance of maintaining continual representation for Massachusetts in the US Senate.
Governors previously had the authority to appoint a replacement who would serve until the end of that seat’s term, but the law was amended in 2004 to strip the governor’s appointment authority and instate the special election process. Notably, Mr. Kennedy requested that change as well, in anticipation of fellow US Senator John F. Kerry winning his 2004 Presidential bid.

Republican W. Mitt Romney was governor at that time, and opponents of the 2004 proposal claimed the move was to prevent Mr. Romney from naming a Republican successor.

Opponents of this year’s bill again claimed the Democrats were playing politics and again trying to change the rule mid-game to maintain their hold on the Senate seat. Opponents also pointed out that in 2004, as an amendment to that year’s succession law, and again in 2006 Republicans pitched interim appointment proposals that were soundly defeated by the Democratic majority.

Rep. Patrick and Mr. Atsalis voted against the interim succession proposals in 2004, while Mr. Atsalis voted in favor of the measure in 2006. Mr. Perry and Ms. Gifford supported the interim appointment proposals in 2004 and 2006.