The case for Elizabeth Warren

In the partisan heat of 2010, the death of Massachusetts Senator Edward Kennedy raised a roadblock to passage of the Affordable Care Act. Long the champion of health care reform, his death deprived Democrats of the necessary vote to pass the bill over unified Republican opposition. Under state law, voters would select his successor in a special election months following his death, and the window to vote on the bill could close.

In a plot twist, the Massachusetts legislature abruptly changed state law to allow Democrat Deval Patrick to appoint an interim successor to serve until the special election to allow the passage of the Affordable Care Act. Massachusetts legislators needed to do this because they took away the power of the governor to appoint interim senators in 2004 to hinder Mitt Romney from tapping a fellow Republican to fill the seat of Senator John Kerry if he was elected president. What goes around comes around.

With Republican Charles Baker now governor, a leading argument against Joe Biden selecting Senator Elizabeth Warren as his vice president is that, if she wins, Baker would pick her replacement. For Democrats, capturing the Senate is almost as important as winning the White House. The polls suggest they may take enough seats to pull even, with the vice president giving them Senate control if Biden wins. Think of the frustration if losing the seat of Warren would put Republicans back ahead by two votes.

The Massachusetts legislature can fix this problem with another partisan workaround. The Constitution makes this possible. While mandating that states will fill vacant Senate seats by special elections, it empowers state legislatures to authorize and set the terms for their governors to fill those seats temporarily pending the vote. By law, most but not all states entrust the governors with this power, while some states have restrictions.

Simply going back to the old approach before 2010 does not solve this problem because it would leave the seat open until the special election. Since Republicans control the Senate by a margin of six seats and may likely flip one seat in Alabama, Democrats need to pick up at least four Republican seats to gain control. With the net gain of three seats, they would still be down by one if the seat of Warren were left vacant.

While most of those states that authorize governors to appoint temporary replacements for senators who die or resign impose no limitations on the choice, six states require that the replacement come from the party of the former senator. Such restrictions for vacant seats would ensure that Baker selected a Democrat to replace Warren if she were vice president.

In Massachusetts, Democrats hold the clear majorities in both chambers of the legislature. They could impose this fix now or after the convention this summer. They could also even wait until after the election, which has the advantage of not doing the unnecessary. Biden may not pick Warren to be his vice president and, even if he did, the ticket may lose. It could turn out that one seat may not matter for control of the Senate.

Moving sooner rather than later clarifies this political situation and sends the signal of home state support for a ticket with two of the most popular candidates among Democrats. Biden needs to have a free hand to select his running mate without having to worry about his party losing a Senate seat simply because Massachusetts has a Republican governor.

Edward Larson is a law professor at Pepperdine University, a winner of the Pulitzer Prize in history, and a member of Checks and Balances. His latest published book is “Franklin and Washington: The Founding Partnership.”