Of the many complaints being registered regarding Rod Blagojevich’s Senate appointment (and, to a lesser extent, David Paterson’s upcoming choice in New York) perhaps one of the strangest showed up today in a New York Times guest editorial by Thomas Geoghegan. He wins points for originality, to be sure, by not arguing against the “taint” of the embattled governor or the specific selection of Mr. Burris, but rather claiming that any such gubernatorial appointments are illegal and in violation of the U.S. Constitution. Frankly, I found myself wondering why this piece was penned at all until I noted that the author is hoping to fill Rahm Emanuel’s seat in the House. That may provide some perspective on this editorial. Pressing on, Thomas writes:

IN 2009 four new senators will slip into office — all in violation of the Constitution, which requires a special election to fill a Senate vacancy. Colorado, Delaware, hapless Illinois and star-struck New York will have senators “elected” by a single voter, the governors who appoint them.

The arguments which Geoghegan fields against the appointment process are truly a wonder to behold, so I invite you to read the piece in its entirety, but we shall attempt to address the main points here. First, the author examines the final paragraph of the 17th amendment, wherein state legislatures are allowed to empower the executive (read: governor) to make appointments. The passage in question begins with the word “provided” and this leads the author off into the twilight zone.

A proviso, one learns in law school, is to be interpreted strictly, and certainly should not cancel out the clause it modifies. In this case, that clause states in plain English that the governor must issue a writ of election.

Yet the current practice in virtually every state flips the proviso to override the main clause. Governors don’t issue a writ or start the machinery for a special election as the amendment requires, but instead fill the post for up to two years, until the next general election. This frustrates the whole democratic thrust of the amendment.

Loosely translated, since the authors of the amendment began that phrase with the word provided, we should effectively ignore everything that follows unless the special election happens quickly enough to satisfy Geoghegan’s tastes. There really isn’t much more to say about this argument. Semantics of a provisional clause is a curious basis for a constitutional challenge to say the least.

The author next vents his rage against people who reference the Supreme Court case of Valenti v. Rockefeller, which addresses essentially this exact question.

The suit was taken up by a federal three-judge panel; two judges held that it was a “reasonable exercise of discretion” for a New York state law to give the governor such power. The third, the widely respected Marvin Frankel, argued that the second clause of the 17th Amendment required special elections as soon as possible. But the matter hardly rests there, as the Supreme Court eventually ducked the question. In 1969 it issued a “per curiam” summary affirmance of the panel’s decision — meaning that while it didn’t overturn the judgment, it issued no opinion in favor of it. Such an affirmance is typically not treated as a strong precedent.

This line of argument is, if possible, even more jaw dropping than the first. Apparently the majority decision of the three judge panel should be disregarded because Mr. Geoghegan felt that the third, dissenting justice was “more respectable?” And the Supreme Court affirmed the decision, but apparently they didn’t affirm it strongly enough?

The author also strongly implies that the Valenti case is the only one available to us, but in fact that decision has been cited as stare decisis on numerous occasions and upheld well into the present era. One excellent example comes in Rodriguez v. Popular Democratic Party, in which they held:

Moreover, the interim appointment system serves the legitimate purpose of ensuring that vacancies are filled promptly, without the necessity of the expense and inconvenience of a special election.

What Geoghegan conveniently fails to note, of course, is that while the next election for a Senate seat usually will fall on the same date as the next general election, it is still a special election unless the departing Senator’s term is expiring. This is the case with Hillary Clinton’s seat. Paterson’s appointment will serve until the 2010 cycle, but that is specifically defined as a “special election” intended only to fill out the rest of Hillary’s term until 2012 at which point the candidates will run for a full term of their own in the seat.

Finally, it is worth noting that the disputed “proviso” in the 17th amendment specifically empowers the legislature of the state to authorize governors, “to make temporary appointments until the people fill the vacancies by election as the legislature may direct.” It doesn’t even specifically call for a special election in these cases and, in theory, the legislature could grant the governor the power to appoint someone to fill the entire remaining term, though I think most voters would find that to be highly unpalatable.