Back to the Seventeenth Amendment

I generally don’t read newspaper editorials, because they are so often namby-pamby or poorly-informed. For once, though, I thoroughly commend the Washington Post’s objection to the recent appointment of successor senators by our nation’s governors.  This is one more situation where the Original Charter (that is, the Constitution) did not anticipate the problem.

Senators are powerful.  There are only 100 of them, and they serve for six years — a very attractive term of offfice.  The Framers intended that the Senate be an aristocratic body, representing the elite of the nation and providing extra guidance for the mercurial plebians bound to populate the House of Representatives.

The exclusive nature of the initial concept of the Senate is reflected in a remarkable fact — it met in private for the first several years of the Republic.  Indeed, the people were not trusted to choose senators.  That privilege went to state legisaltures. 

As the nation grew, as the right to vote spread, as democratic principles became more and mroe entrenched, we grew uneasy with the Senate.  The Seventeenth Amendmet, adopted in 1913, ensured direct election of senators by voters, but the Constitution is silent about how to fill a Senate seat that becomes vacant. 

That silence has been filled by state laws that are now obsolete.  In the eighteenth and nineteenth centuries, state legislatures did not meet most of the year, so state governors were given the power to fill empty Senate seats until the legislators would gather again.  That is how Edmund G. Ross of Kansas found his way into the Senate in 1866, after Senator Jim Lane committee suicide.  (The governor’s appointment was ratified at the next session of the state legislature, as a Ross supporter bribed a variety of legislators, leaving Ross in office long enough to save Andrew Johnson from conviction during his impeachment trial — all covered in my forthcoming book on the impeachment trial.)

But look where gubernatorial appointments get us now:

Roland Burris of Illinois, a 71-year-old political veteran who would not be a serious candidate in any statewide race, who has been appointed by the politically toxic Rod Blagojevich.


DEJR.jpgTed Kaufman of Delaware, 69, whose principal claim to fame is having spent 21 years on Vice President Joe Biden’s staff, and whose principal political virtue is the assumption he will step aside in two years and allow Biden’s son, Beau, to run for an open seat.

Kirsten Gillibrand, 42, of upstate New York, who was reportedly chosen because she will strengthen Governor-by-accident David Patterson’s run for election in 2010


Michael Bennett, Colorado’s new senator, was superintendent of Denver’s schools.  Though reputed to be bright and able, he has never run for public office.  He will double the number of senators named “Bennett” (there’s also Bob from Utah).

4ff3b197-25df-40be-a204-a92b60e95ab5.jpgBut why, oh why, can’t we use elections to fill these seats? We have known for two months that the New York and Delaware vacancies would arise.  Surely that was time enough for a special election.  Governors make appointments for their own personal interests — though only Blagojevich seems to have thought to try to auction the seat off.  Each of these new senators enters office with some serious question as to their political viability.  That’s why we have elections. 

Each state legislature should review its statutes and provide for elections to fill vacancies.  This also could be fixed by constitutional amendment, but that takes a long, long time, and is a very uncertain road. 


  1. klkatz on February 21, 2009 at 11:09 am

    great post – and I’m with you… how in the world can our democratic system have overlooked something like this – something like this should be left up to the people… i’m just glad i don’t live in Illinois.
    I love our Governor in Pa. – Ed Rendell. It helps that I’m a PHiladelphian and i’ve seen the great things Ed did for our city… but what a snafu they have going on in Illinois.
    oh…and congratulations on your book. with the new lincoln movie comiing out with Neason and Ford, they could use your book as a follow up…
    good luck.

Leave a Comment