MA governor appoints Paul Kirk as interim Senator; GOP throws tantrum in media

The Massachusetts legislature passed a bill authorizing the governor to appoint an interim Senator to fill the seat which became vacant when Sen. Ted Kennedy died. The election to fill the seat permanently will still occur in the Spring of 2010. The GOP immediately brought suit saying that since the legislature did not declare that the interim appointment was an emergency appointment with a two-thirds vote, then the MA governor was required to wait 90 days to make the appointment.

State Court Judge Tom Connolly disagreed and threw out the GOP lawsuit as being without basis. This was Judge Connolly's argument:

Lawmakers passed a law this week giving Patrick the power to appoint an interim replacement for the late Senator Edward M. Kennedy until a special election can be held Jan. 19. Laws usually take 90 days to go into effect, but Patrick signed an emergency letter which made it effective immediately.

In a court filing, Assistant Attorney General Peter Sacks countered that the Supreme Judicial Court in a 1975 ruling had made it clear that a governor does not need legislative approval to invoke an emergency. He also said that the judiciary does not have the constitutional authority to directly block a governor's executive appointment.

On Thursday, Secretary of State William F. Galvin, a Democrat, said the emergency letter is "very clearly available to the governor under the Constitution. I don't know how you suggest this is something novel. It's not."

Former Republican governor Mitt Romney used the emergency provision 14 times, Galvin added, including to increase the boating speed limit in Charlton and to change the office of town moderator in Milton.
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"the Party [The GOP] does not cite any case law in support of its argument."

So the precedent is that the Governor has the power to declare the law an emergency on his own and previous governors have frequently used that power. There is no case law that establishes that the governor does NOT have the power to make the immediate appointment. If there were then the GOP would have cited it in their lawsuit.

It looks to me as though the GOP was bringing a frivolous lawsuit hoping to get it heard by a lawless conservative judge who does what he wants instead of what the law requires. Now that Judge Connolly has done what the law and precedent required, the GOP is going to complain loudly in the media for a while. They were just playing for more time to kill health care reform.