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Senate OK’s Kennedy successor bill

Governor could name interim pick tomorrow

By Matt Viser
Globe Staff / September 23, 2009

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The state Senate approved a bill yesterday that would let Governor Deval Patrick appoint an interim successor to Edward M. Kennedy, paving the way for the appointment of a new US senator as early as tomorrow and providing Democrats in Washington the potential 60th vote they have been seeking to pass a health care overhaul.

The state Senate approved the measure by a 24-to-16 vote, just five days after the House had voted 95 to 58 to change Massachusetts election law and allow the appointment of an interim US senator. Both chambers are planning to give a final procedural endorsement to the measure and to send it to the governor’s desk today; the only potential hurdle is that Republicans are contemplating a last-ditch legal challenge in an effort to derail the legislation.

News of the vote reverberated yesterday from Beacon Hill to Washington, where US Senate majority leader Harry Reid, informed of the news when a note was passed to him, pumped his fist into the air and cracked a small smile, according to an aide.

All attention now turns to Patrick, who has been weighing the appointment options with a close circle of advisers in recent days, asking them to cast a wide net, according to a person with knowledge of the process who requested anonymity because of the sensitivity of the discussions. It has been an “extensive vetting process,’’ but the governor is still mulling over candidates, the person said.

The governor is hoping to be able to appoint someone tomorrow or Friday, the person said.

Mindful of recent controversies over interim US Senate appointments in New York and Illinois, Patrick administration officials have declined to release the names of those under consideration.

“The governor appreciates the support voiced in the Senate today and the action taken by the House last week to ensure Massachusetts has full representation in the Congress,’’ Patrick’s spokesman, Kyle Sullivan, said in a statement.

The interim senator appointed by Patrick would serve until voters elect a new senator in a Jan. 19 special election. That senator would serve the remaining three years of Kennedy’s term.

Kennedy’s two sons, US Representative Patrick J. Kennedy of Rhode Island and businessman Edward M. Kennedy Jr., have told Governor Patrick that their first choice for an interim senator is former Democratic National Committee chairman Paul G. Kirk Jr., according to a Kennedy family associate.

Kirk, an attorney who lives on Cape Cod, worked as a special assistant to Senator Kennedy from 1969 to 1977, is currently the chairman of the John F. Kennedy Library Foundation, and last month served as master of ceremonies at a widely watched memorial service the night before Senator Kennedy’s funeral.

Kirk, 71, has not returned several calls seeking comment.

Among the other names frequently mentioned by observers are former governor Michael S. Dukakis, Harvard Law School professor Charles J. Ogletree, and former lieutenant governor Evelyn Murphy.

It is Dukakis’s name that has received the most widespread attention so far, with some Democrats privately pushing for his appointment, others anxious over how he might be received by the general public, and Republicans nearly gleeful as they contemplate his political resurrection.

“Talk about back to the future,’’ state Senate minority leader Richard R. Tisei said yesterday. “Good grief!’’

Following the vote, state Senate Republicans said they are considering challenging the interim appointment legislation in court, arguing that the new law should not become effective for 90 days because the legislation did not have the two-thirds majority required for immediate implementation.

But the state constitution also allows the governor to send a letter to the secretary of state requesting early implementation of a law. Republicans say that provision is meant to apply to other instances, but a spokesman for Secretary of State William F. Galvin said the procedure has been used in other instances, as recently as last year.

The legislation approved by the state House and Senate does not legally bind the appointee from seeking the seat permanently, but both chambers have passed resolutions requesting that Patrick choose a person who agrees not to run in the general election. Patrick has also said he would secure that commitment.

During the state Senate debate yesterday, which followed several days of parliamentary delays, Democrats argued that the state needs a second senator to represent its citizens.

Republicans argued that the move is hypocritical, given that the Legislature rejected the same approach when the governor was a Republican. Republicans led several attempts to add restrictions or modifications to the legislation, but they were outvoted.

“It was an excellent debate on both sides, a lot of passion on both sides,’’ said state Senate President Therese Murray, who voted for the change, but was bucked by some top Democrats who didn’t support it.

Several state senators changed their votes from the last time the issue came up in 2004, when the Legislature, controlled by Democrats, changed the law to provide for a special election process to prevent Governor Mitt Romney, a Republican, from appointing a successor to US Senator John F. Kerry if Kerry had won the presidency.

“I think I made a mistake then,’’ said state Senator Steven A. Tolman, a Brighton Democrat. “This is politics, right? Sure it’s politics.’’

And state Senator Karen E. Spilka, an Ashland Democrat, said, “We should have done this then. . . . This to me is not a Democrat issue at this point. It’s not a Republican issue. It’s a Massachusetts issue.’’

Eleven Democrats joined all five Republicans in voting against the measure.

“It’s wrong to change the rules depending on who’s in power,’’ said state Senator Brian A. Joyce, a Milton Democrat who was a key architect of the legislation to establish special elections to fill Senate vacancies in 2004. “We shouldn’t change the rules by which we govern our democracy depending upon who the governor is.’’

Patrick would be making the fourth such appointment since US senators started being elected by popular vote in 1913.

The others were William M. Butler, appointed in 1924 after the death of Henry Cabot Lodge; Sinclair Weeks, appointed in 1944 after the resignation of Henry Cabot Lodge Jr.; and Benjamin Smith, appointed in 1960 when Senator John F. Kennedy resigned after being elected president.

The Senate vote yesterday capped a furious lobbying campaign by national Democrats that began shortly after Kennedy’s death last month.

Patrick said last week that President Obama spoke with him about changing the law at Kennedy’s funeral last month. White House senior adviser David Axelrod and Reid have also lobbied Massachusetts lawmakers to change the law.

“Today’s vote gives the people a voice in the Senate until they exercise that choice,’’ Kerry, a Massachusetts Democrat, said yesterday in a statement.

“This is what Ted Kennedy wanted, what Governor Patrick and I wanted, and I firmly believe it’s what people in Massachusetts want, because big votes on everything from health care to climate change are being taken now, not in five months.’’

Matt Viser can be reached at maviser@globe.com.