UC law professor questions constitutionality of Schatz appointment

Hawaii’s law which requires political parties to select and submit three names to the governor in the event of a vacancy in one of the state’s U.S. Senate seats is not “constitutionally proper,” according to a law professor at the University of California at Davis.

Vikram David Amar, in a column at Justicia.com, argues the “short list” requirement impermissibly limits the governor’s constitutional authority and is therefore subject to a constitutional challenge based on the Seventeenth Amendment (“The Constitutional Problems With the Hawaii Law By Which Senator Schatz Was Appointed to Replace the Late Senator Inouye“).

Here’s the relevant part of the Seventeenth Amendment regarding vacancies.

When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.

Amar first examines the amendment carefully.

The Seventeenth Amendment’s language differentiates between a state “legislature” and a state “executive” authority, and allows a state legislature not to make or constrain any temporary appointments itself, but rather only to “empower the [state] executive to make [the] appointment.”

In other words, the Amendment, by its terms, creates potential appointment power only in Governors; it does not authorize legislatures to participate in such appointment decisions, beyond simply determining whether the Governors should be allowed to make temporary appointments or not.

This textual argument—that the legislature has no authority to limit the governor’s substantive choices to specific persons or kinds of persons—is reinforced by the last five words of Section 2 of the Seventeenth Amendment: “as the legislature may direct.” This clause refers to, and confirms, the legislature’s discretion as to the timing and procedures of any special popular election to be held to fill a vacancy. By contrast, the provisions concerning gubernatorial temporary appointment lack any similar language suggesting legislative discretion with respect to the process, let alone the substance, of such a gubernatorial appointment—which strongly suggests that the legislature does not have broad prescriptive powers here.

He then turns to the history of the Seventeenth Amendment, arguing that it’s primary purpose was to allow for quick appointments by the governor in order to avoid long Senate vacancies. In an extended analysis, he argues that letting party insiders limit the governor’s choice sets creates a potential political roadblock in the event the governor rejects the three nominees presented.

Some modern observers see virtues—in a world in which political parties are enduring and sometimes beneficial realities—to empowering party leadership to make replacement decisions, because such schemes may preserve important partisan balances, and because party leaders can ensure that whoever fills a vacancy is a bona fide party member, rather than a nominal one. Yet party leaders are also often much more extreme and partisan than the median party member in a state, and they are certainly more extreme and partisan than the median state voter. Party leaders of one party in a state are thus poor surrogates for the voting public.

In any case, this is definitely a column worth reading.

Local attorneys Mark Murakami and Robert Thomas recently examined the history of the Hawaii law as well as the constitutional issues (“Senate Vacancies, And Why Governors Must Pick Temporary Appointees Chosen By Political Parties“), including lots of useful links.

19 responses to “UC law professor questions constitutionality of Schatz appointment

  1. Argument seems quite theoretically since Abercombie appeared to have no desire to choose outside of the three anointed ones and himself did not seek the job.

    Because of state rights, I wonder if any conflict would be resoled in state’s favor by an appellate body?

  2. I will leave the constitutional arguments on this one to the lawyers. Except to point out Amar’s argument would allow a Governor to appoint someone from the other political party. For example, even if the voters had elected a Republican to the US Senate, a Democratic governor could ignore that and appoint a Democrat. Many states restrict the governor’s choice to members of the same party as the previous office-holder. Amar’s interpretation would throw out all such restrictions, beyond the age and residency requirements of the US Constitution.

    Let me talk about Hawaii’s law as POLICY. I believe it is vastly superior to what existed before the law was changed. Here is some history, probably familiar to some of your readers.

    When state Representative Ken Hiraki resigned from the Legislature for a job in the business world, this left the voters of House District 28, the Downtown area, without a rep. Since the law required the Governor appoint a member of the same political party as that elected by the voters in the most recent election, the local Democratic party organization, the District Council, sent out word to its members asking for nominations, held interviews with prospective nominees and forwarded the names of 5 members they considered qualified for the office.

    During this time, I got a phone call from a volunteer in the Democratic Party headquarters telling me Republican activist and unsuccessful candidate, Bev Harbin, had come into Party headquarters and signed a party card. My friend insisted this was part of a plan so Governor Lingle could appoint her to fill the vacancy. I scolded my friend for being so cynical and partisan. Just because Lingle is a Republican doesn’t mean she would stoop to doing something so blatantly unethical. She called me naive and said, “Just wait and see.”

    Well, my cynical friend was right. Lingle was that unethical. This outraged enough Democrats, particularly in the Downtown area, that we determined to work to change the law.

    Lingle had actively campaigned for a Republican, Colin Wong, against Hiraki in 2004, the immediate preceding election and was expected to do so again in 2006. Therefore, it was not in her interests to appoint a Democrat to the position who would be popular enough with the voters to defeat Wong in the next election. In this way, her interests were in opposition to those of the residents of the district. The local Democrats, on the other hand, had incentives to appoint a STRONG Democrat to the position, one likely to satisfy the voters and to win re-election. In a case when a Governor from one party has to appoint someone from the other party, a conflict of interest of this sort is created.

    It is of note that Karl Rhoads was one of the top nominees of the local Democrats for consideration. He was rejected by Lingle in favor of “fake Democrat” Bev Harbin. But at the first opportunity, when the voters were given a choice, they voted for Rhoads in a landslide over Bev Harbin, 59% to 14%. They went on to elect Karl over Lingle’s favorite, Colin Wong, in the General Election.

    Because Lingle had abused her appointing power so badly, Democratic Party members, with leadership from the old Hiraki-Harbin district, determined to work to change the law to prevent future abuse. We were well aware both of our US Senators, the “Two Dans,” were getting old and did not want to give her a chance to appoint a fake Democrat to the US Senate. If she was willing to behave so badly for a state House seat, what would she do when the prize was a US Senate seat and the pressures from her mainland Republican buddies would be so strong?

    The way the Hawaii Democrats handled the nomination of three Democrats for the Governor’s consideration for appointment stands in shining contrast to the Bev Harbin appointment by Lingle. Or, for that matter, when compared to how Illinois Governor Rod Blagojevich Handled his “golden opportunity.” Although the process was rushed, we gave fair consideration to 14 applicants and forwarded 3 of the best qualified to the Governor. I think the Governor benefitted from the split responsibility. It allowed party officers an opportunity to weigh and comment upon who was qualified and how much importance to place on things like the public relations pressure campaign organized by Hanabusa supporters to “honor Senator Inouye’s request” that she be appointed.

    In this case, the appointing Governor was a Democrat. Had the GOvernor been a Republican, the Governor would have also been restricted to the same three names. So anyone appointed would have been judged by the Democratic Party as highly qualified. Not someone who would agree to step aside for a Republican in 2014. Nor someone too weak to withstand a Republican challenge then.

    I think the Hawaii law has served the residents of Hawaii well. Much better than the previous law. And much better than what Professor Amar would inflict upon us.

    • What is left out of all this discussion is any mention of non-partisans being involved in politics. I can’t think of any good reason why there should be laws that require my representatives to join these private organizations so they can represent me. I really don’t care for all the hate these private clubs spew at each other.

    • Thank you Bart.

    • OK Bart, I get that you are a “downtown” Democrat. Here’s some clarification (re: the “unethical” former Gov Lingle);

      “According to Tomas Paul and Linda Elder of the Foundation for Critical Thinking, “most people confuse ethics with behaving in accordance with social conventions, religious beliefs, and the law”, and don’t treat ethics as a stand-alone concept.[2] Paul and Elder define ethics as “a set of concepts and principles that guide us in determining what behavior helps or harms sentient creatures”.
      So… while I understand how offensive you found the appointment of the excreable Ms Harbin…that does not make her appointment “unethical”
      especially given the context of this topic
      i.e. the broad powers granted to the Executive by the Constitution.
      In fact, I find your factions action to constrain the Executive more offensive than the ill you sought to cure. We, the people, elected the Executive and conferred upon him(her) great powers… to paraphrase Lincoln.
      We conferred NOTHING upon either party, or any other entity, that might seek to insinuate themselves into a position of granting or restricting executive power, as your group, regrettably, did.

      • To clarify a possibly obscure reference.
        From “Lincoln” the movie;
        .. “I am the President, cloaked in immense power! You will procure me these votes.”
        I loved that scene, and that particular line. It provided the neccessary “balls” to an otherwise exceedingly intellectual man, albeit a folksy one.
        Great movie…especially for politicos.

      • Hawaiino,

        I can understand why you may have gotten the impression I am a “downtown” Democrat, but I am not. I was intending to acknowledge the outrage of those who felt cheated by Lingle’s unethical behavior. Sorry, but you are confused if you think what she did was “ethical.” It was not motivated by a desire to install someone supported by the community nor was she honoring the intent of the law that she appoint someone from the sme party. Instead, she colluded with someone from her party to change nominal party affiliation in order to qualify.

        Was the appointment legal? Yes. Was it ethical. No.

        I recognize there are people who exalt authority of the executive over that of the people. Your arguments here suggest you are one of those. My description of the history behind the law was intended to illustrate how the previous system had been open to abuse, how the partisan interests of a Governor could (and did) lead to results contrary to those of the residents of the district and how the partisan interests of the party of the appointee would be more inclined to align with those residents.

        My argument about the structural incentives holds whether we are talking about a Republican governor appointing a Democrat or a Democratic governor appointing a Republican. My argument recognizes the effect of partisanship on decisions of this sort. But it is not, itself, a partisan argument.

        But if you find more comfort in comparing Lingle to Lincoln in order to analyze Hawaii politics, I have no need to disturb you from your comfort zone.

    • “Had the GOvernor been a Republican, the Governor would have also been restricted to the same three names.”

      Well, I don’t think Schatz would be LG to a Republican governor, and probably wouldn’t have made the list of three.

      But setting that aside for the moment, can’t you see a Republican choosing Hanabusa, appeasing Inouye loyalists while also opening up a Congressional election that Lingle or Djou could enter?

      How about we anticipate such situations, and actually elect successors?

      • Zzzzzz,

        You are correct. It was not very thoughtful for me to have said the names would have been the same if the Guv were a Republican. Under the present circumstances, the names of Hanabusa and Schatz were a no-brainer. I have no idea who would have been nominated had Duke Aiona been Governor. It suddenly would have become much more complicated.

        • In your reply to me there were also comments you should have been more thoughtful of prior to engaging in:
          Conflation , presumption and ad hominem arguments. I will not argue with you further, your rhetorical style, like all ad hominem attacks, answers itself.
          For the record, the only thing, in my opinion, that Lincoln and Lingle share in common is a possible preference for log cabin republicans.

          • Hawaiino,

            Your comment about “ethics” and restrictions on executive power was thoughtless. And your denunciation of the law as a “factional” exercise rather than an attempt to prevent to fix an obvious problem was offensive. At no point did you try to grapple with the conflict of interest a Governor of one party has when empowered to appoint an officeholder of the other party. Indeed, you preferred to exalt the “great powers” of the Executive instead of offering any practical solution for their obvious abuse.

            You get offended by people trying to restrict executive power, even when it has been blatantly abused. I think the record of appointments made under the new law is evidence enough our reform was an improvement. And yes, “helps sentient beings.”And therefore, by your proposed definition, more “ethical” than the earlier law.

        • This makes for an interesting, albeit completely hypothetical, discussion.

          Were Aiona the gov, I would guess the Dems would not want to open any seat that Lingle or Djou could contest in a winner-take-all election, so Hirono, Hanabusa, and Gabbard would be out.

          They’d probably want a candidate that had a real chance of beating Lingle or Djou for the seat in the next election.

          Could you see them holding their noses and putting Ed Case on the list? Mufi?

          But I think we should take a look at avoiding this situation entirely, and have a defined chain of succession, preferably elected. We have one for the LG; why not for other offices as well?

  3. yet another reminder of:

    Thank the bloody stars, someone talked me out of going to law school. amen.


  4. This may be a bit off topic of the post but I think that this is another example of a misleading headline. The possible constitutional question is not about the appointment of Schatz per se. It is about the process used to make the appointment. The same question would exist (but may not have been raised) no mater who was selected by this, possibly flawed, process.

  5. it might be worth considering that this is purely theoretical since the only person who would have standing to challenge the state law in federal court would be the governor and he instead picked from the list.

    • Inoaole, Thanks for the comment. I too wondered if that was the long and short of the matter at least as to this appointment. I would assume that this did not escape the governor, either, nor the first time someone raised the issue.

    • Wouldn’t one of the applicants who didn’t make the cut have standing to challenge the law?

  6. Like Bart, I too have been actively involved in the important decisions to change both state law and internal Democratic Party rules.

    In mid-nineties, I first got involved with these issues when SigOth and I decided to actively support a Green Party candidate for the State House over a Democratic Party incumbent. We opposed him because of his positions on a number of key initiatives; however, up to that point, no one was willing to take him on either internally or in the external political process. He finally left the House two years later – unwillingly.

    What was particularily frustrating – and funny – was the response of the Party leadership to what we had done because many people quietly agreed with our positions; however, almost a decade passed before the core issues began to be addressed because of Lingle’s actions.

    The decision(s) made regarding the current appointment(s) to fill the positions have been a personal, professional and political challenge – at least to me – and I appreciate having been given the opportunity to take part in some of them.

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