GOP fails to block Kirk swearing-in

By John R. Ellement and Andrew Ryan, Globe Staff

A Suffolk Superior Court judge this afternoon rejected a request by the state Republican Party to block the appointment of Democrat Paul G. Kirk Jr. as interim US senator.

The ruling leaves Republicans with few options to stop Kirk from taking the oath of office this afternoon in Washington.

"I really didn't have a great deal of concern about it," Kirk said after arriving on Capitol Hill.

Judge Thomas Connolly deliberated for about four hours after listening to an argument by the state GOP, which contends that Democratic Governor Deval Patrick overstepped his authority by declaring an emergency so Kirk's appointment could be made immediately.

"It's a rogue governor trying to skirt the will of the Legislature and the will of the people," said Jennifer A. Nassour, chairwoman of the state GOP, at a press conference after the hearing. Nassour added: "The governor has over stepped his constitutional boundaries, and we're hoping that the judge rules in our favor."

In a court filing, Assistant Attorney General Peter Sacks argued that the Supreme Judicial Court in a 1975 ruling had made it clear that a governor does not need legislative approval to invoke an emergency. He also said that the Republican effort should be tossed out because Patrick has made the appointment under the new law, making their challenge moot. Finally, Sacks contended that the judiciary does not have the constitutional authority to directly block a governor's executive appointment.

Connolly has been a Suffolk Superior Court judge since Sept. 17, 1990, when he was appointed by former governor Michale Dukakis, a Democrat who had also been considered for interim senator.

Kirk carried his official nomination papers to Washington, where he is scheduled to be sworn in by Vice President Joe Biden this afternoon.

Lawmakers passed a bill this week giving Patrick the power to appoint an interim replacement for the late Senator Edward M. Kennedy until a special election can be held Jan. 19. Laws usually take 90 days to go into effect, but Patrick signed an emergency letter which made it effective immediately.

On Thursday, Secretary of State William F. Galvin, a Democrat, said the emergency letter is "very clearly available to the governor under the Constitution. I don’t know how you suggest this is something novel. It's not."

Former Republican governor Mitt Romney used the emergency provision 14 times, Galvin added, including to increase the boating speed limit in Charlton and to change the office of town moderator in Milton.