Senator Mitch McConnell is not well. Without going too deep into an armchair diagnosis of his recent spate of freezes and falls, it shouldn’t be controversial to say that an 81-year-old man who mysteriously stops talking and can’t start up again is likely suffering from some kind of significant health issue.

If he were a woman, the calls for him to retire would be deafening. If he were a Democrat, the calls would be coming from within his own party. If he were Joe Biden, The New York Times would run a three-part exposé on his nap times while CNN ran a “25th Amendment Tracker” keeping tabs on which cabinet officials had publicly agreed to remove him from power. But McConnell is a Republican man, which means nobody is going to pressure him into getting out of the way so somebody else can frost the glass of representative democracy.

McConnell, of course, shows no sign of being willing to retire. In private calls, he has allegedly assured Republicans that he is “fine,” and I guess everybody is supposed to take his word for it. The most simple reason for his intransigence is the pride that seems to afflict every octogenarian politician in this broken republic. For reasons I hope to live long enough to discover, old politicians seem to think they are indispensable and will continue to run for office and cling to power until the great Voter in the Sky escorts them to a farm upstate. McConnell may simply be doing what others in his generational cohort do: refuse to cede the floor to the future.

But that explanation risks treating McConnell as a normal person, and McConnell is far from normal. He is perhaps the most successful congressional operator since Henry Clay and a man who wouldn’t turn on a light switch unless it somehow helped Republicans win political power. Whether or not McConnell wants to retire is irrelevant; from his perspective, he probably can’t. That’s because his home state of Kentucky has a Democratic governor, and a law McConnell helped engineer to limit that governor’s choices on McConnell’s replacement is probably unconstitutional.

In 2019, Kentucky shocked the country by electing Andy Beshear, a Democrat, as its governor (yada, yada, all politics is local). This year, Beshear is up for reelection, and he’s running against McConnell ally Daniel Cameron, who was last seen refusing to indict the police officers who killed Breonna Taylor. Beshear leads Cameron by eight points, according to recent polling data.

Kentucky is one of 46 states that allow their governor to fill US Senate vacancies until a special election can be held and the voters can determine who will finish the senatorial term. (North Dakota, Oregon, Rhode Island, and Wisconsin are the only states that don’t allow these kinds of temporary gubernatorial appointments but instead go straight to special elections.) This means that if McConnell retires while Beshear is in office (which might be for a long time yet), Beshear gets to fill his seat temporarily.

But there’s a catch. In 2021, at the urging of McConnell, Kentucky became the 11th state to limit the governor’s choices for a replacement senator. The Kentucky law requires the governor to pick a senator from the same party as the retiring senator, and requires the governor to pick from a list of three candidates provided by the executive committee of the departing senator’s political party. The Kentucky legislature passed the law over Beshear’s veto.

If that scheme sounds odd to you, it should, because it almost certainly violates the 17th Amendment of the Constitution. The 17th Amendment, ratified in 1913, provided for the direct election of senators by popular vote. The amendment also empowers the “executive authority of the state”—which means the governor—to fill Senate vacancies, as long as the legislature gives them authority to do so before a special election is held. Before the change, senators were chosen directly by state legislatures, which meant that party bosses were able to hand out Senate appointments as if they were a patronage position.

Kentucky’s replacement law is exactly the kind of thing the 17th Amendment was meant to stop. In his veto statement, Beshear explained the constitutional problems with the law as well as I can. The governor wrote: “The Seventeenth Amendment does not authorize legislatures to direct how the Governor makes an appointment to fill vacancies, and the legislature may not impose an additional qualification on who the Governor may appoint beyond the qualifications set for a United States Senator set forth in the Constitution.”

If McConnell retires, the most likely thing for Beshear to do would be to appoint whomever he wants, let the Kentucky legislature sue him, and take the case to the Supreme Court. Despite Republican control of the court, I think Kentucky’s law is likely to lose. Even conservative legal commentators have noted the potential constitutional weakness of the Kentucky replacement scheme.

Still, even if Kentucky’s legislature manages to overcome the 17th Amendment, there is yet another wrinkle: Who is going to tell Beshear’s replacement senator to go home? Remember, as of now, Democrats still control the Senate. Beshear would name a replacement; that replacement would present his credentials to the Democratic-controlled Senate; and that’s just about all it takes to make a new incumbent a senator. By the time the appeals made it to the Supreme Court, Kentucky would be at or near the special election anyway.

McConnell, of all people, understands how raw political power works, and he surely understands that Democrats have it right now, regardless of Kentucky’s constitutionally questionable law. Even if McConnell’s Senate seat flips to a Democrat for only a few months, those are a few months during which the Democratic majority would be freed from the clutches of Joe Manchin and Kyrsten Sinema. A motivated party could push through a lot of federal judges in a few months.

  • NevermindNoMind@lemmy.world
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    1 year ago

    Side bar that I found kind of interesting. Politico wrote about how senators in particular will not call for each other to resign, even members of the other party. With Fienstein, Republican senators were mum. With McConnell, Dem senators were the same. Politico had a bunch of other examples of ailing senators wandering around the building and senators of both parties just shrugging, but I don’t remember them. The reason is they generally are all old, or expect to still be serving when their old, and they all share a sense of “there but the grace of god goes I.” Just a neat little anecdote I read.

    You could take it negatively and critize the Senate for having so many old people, and there’s some validity to that for sure. Personally I’m more in the age is just a number camp, and I’ll point to congressman Don Beyer who is 72 years old and pursuing a master’s degree in machine learning so he can better help congres regulate AI. I’m also not going to tell 82 year old Bernie Sanders to get off the picket line. Being old and being out of touch are correlated (highly even), but it’s not necessarily causation. As for health concerns, I’ve had mine own and I’d err on the side of letting people decide for themselves when they are too gone to be effective. At least until it becomes a problem. Imo it’s a problem for Feinstien.

    Anyway, the other way to take the acedote is that at least there is still a chamber of Congress with some decorum and respect for the people they work with. It’s refreshing compared to the shit throwing freedom caucus monkeys running the house.

    • Syringe@lemmy.world
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      1 year ago

      I understand why being that old in Congress is a problem for exactly the reasons you’ve outlined. I also understand that the elderly, for better or worse, are a voting demographic in America, and deserve representation in Congress from people who understand their issues.

      (I feel the same way about convicts… especially in America where ex cons are a significant part of the population)