In writing this post I am trying to be very careful because while it does address a real issue it deals with some very touchy issues. I am speaking of the current illnesses of Senators Kennedy and Byrd. Obviously with regard to Senator Kennedy I have nothing but the deepest sympathy for his condition and with regard to Senator Byrd I recognize the serious problems that come with age.

However according to a media report today, Senator Byrd has been in the hospital since May 15th and it seems likely he will remain there for at least another week or two. Kennedy has not cast a vote in the Senate for most of the current Congress and given his condition is unlikely to do so in the near future.

In pointing these facts out I am not being critical of them, I recognize that they are ill and obviously their personal health must come first. But at the same time Kennedy is not going to recover from his tumor and Byrd is simply going to get older and weaker as time moves on. Were I a citizen of Massachusetts or West Virginia I would have some concerns about being only half represented (although as a citizen of California I can’t say I’d mind if Boxer chose to skip a few months of work).

However for the citizens of those two states the question does have to arise as to whether it would be better for Kennedy or Byrd to step aside, let someone else serve and then focus on their own personal issues.

From a purely political point of view this presents problems for the Democratic majority particularly with regard to potential filibuster issues. To quote the rule:

“that question shall be decided in the affirmative by three-fifths of the Senators duly chosen and sworn — except on a measure or motion to amend the Senate rules, in which case the necessary affirmative vote shall be two-thirds of the Senators present and voting — then said measure, motion, or other matter pending before the Senate, or the unfinished business, shall be the unfinished business to the exclusion of all other business until disposed of.”

So with the rules requiring 3/5ths of Senators sworn the absence of Kennedy and Byrd does not change the math of the situation. With either 99 or 100 Senators in office (pending the outcome in Minnesota) you need 60 votes to invoke cloture. But with Kennedy and Byrd absent the Democrats have only 57 or 58 votes (again depending on Minnesota being resolved for Franken).

Were Kennedy and Byrd to step down then a Democrat would be appointed to replace them and they would be up to the needed 60 votes.

Again we obviously reserve our sympathies for these two men who have given so much time in service to their country but politics also requires reality and someday soon Senator Reid may need to make some tough decisions and some even more difficult demands.