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Ted Kennedy's (and William Rehnquist's) disservice

By Jack M. Balkin

Given my comments in my last posting on the narcissism of elderly and ill senators who will simply not retire gracefully, I must regretfully add to the list the late Sen. Edward Kennedy, who I believe to be the greatest single senator of the past century (at least). In many ways, he provided all of us with a model of how to face death with true grace, as did, arguably, Chief Justice William H. Rehnquist, but in both cases, alas, one must also recognize that they should have resigned once it became clear that their illnesses were indeed terminal and that they would be subject to treatment regimens that could not fail to affect their abilities to do the jobs to which they had been elected or appointed.

We actually have a constitutional amendment, the 25th, to take account of presidential disability. But the problem is that it seems to believe, implicitly, that there are no problems posed by similar disabilities on the part of other public officials (including, for that matter, the vice president). This is obviously questionable, even if one can easily agree that presidential disability, especially in a system that includes elements of constitutional dictatorship, poses special problems. As it happens, Paul Carrington and Roger Cramton have taken the lead in drafting a proposal that I was glad to sign that addresses the problems of potential disabilities of members of the Supreme Court.

This is obviously a difficult subject to address. Most of us, happily, do not yet know what it means to face the reality of one's imminent death, and the imagine of "dying with one's boots on" is, I suspect, attractive for most of us. The proposal suggests a legal response to this human, all-too-human situation, but, ultimately, what is required is a sense of personal responsibility (and, perhaps, a family that is willing, at some point, to cease enabling the desire to hang on to the bitter end).

There is, incidentally, one vital difference between the situation facing Sen. Kennedy and the one possibly facing Sen. Lautenberg. Sen. Kennedy would not have worried that a resignation would have inevitably handed his seat to the Republican Party, whereas Sen. Lautenberg is correct to be concerned that this would not be the case in New Jersey. This is a good reason to modify the 17th Amendment to require governors to appoint successors from the political party of the former senator, as is indeed required in several states, including Wyoming. (Obviously, there would be problems in Connecticut and Vermont, where the senators are formally "independent.") As I have argued previously, it is a terrible idea to strip governors of their power to make such appointments at all, given the high desirabililty of replacing senators as soon as possible in case of an attack that would kill or disable a significant number of senators.

Perhaps the contemporary revolt against incumbents will sweep away so many of the "old timers" that the problem will basically vanish (save in the Supreme Court), but, if not, we can look forward to ever more examples of senators whose health necessarily will be of concern to all of us.

Full post as published by Balkinization on February 21, 2010 (boomark / email).