Mitch McConnell should resign now

Sen. Mitch McConnell (R-Ky.) had the most dire public “senior moment” of his career on Wednesday (July 26). He suffered what was, to all appearances, a stroke while speaking at a press conference. This is the latest in a string of health scares that have struck him, in addition to his not having been the most effective Floor Leader the Senate Republican Conference has ever had. For all these reasons, he should resign immediately and retire to private life. And ironically, he himself removed the only possible objection anyone could raise to his immediate departure from the Senate.

What happened to Mitch McConnell?

CNAV reported this incident two days ago. Mitch McConnell was leading a Senate Republican press conference on progress on the annual National Defense Authorization Act (NDAA). The best detail came from Independent Journal Review. He was saying,

We’re on a path to finishing the NDAA, uh, this week. We’ve had good bipartisan cooperation, and a string of, uh,…

At that instant his voice trailed off. An uncomfortable thirty seconds passed, during which time he stood at the podium, saying nothing, and swaying slightly. Sen. John Barrasso (R-Wyo.) stepped up to his right side. He asked,

You OK, Mitch? Anything else you want to say or should we just go back to your office? Do you want to say anything else to the press?

Again McConnell said nothing, and finally turned to walk away from the podium.

According to The Western Journal, this isn’t his first health scare. On July 14, he tripped and fell while getting off an airliner at Ronald Reagan Washington National Airport. In fact, according to one second-hand report, he fell flat on his face. NBC News broke that story, but no one said anything about it until after the “brain freeze” incident went public.

In fact earlier this year he took a fall and suffered a concussion and a cracked rib. That incident caused him to be absent from the Senate for six weeks.

Lately he has taken to using a wheelchair to navigate crowded airports. It may or may not be significant that he suffered a bout of poliomyelitis as a child.

Several commentators, among them Will Dupree at The Daily Wire, wondered whether Mitch McConnell should resign from the Senate.

So did Brandon “The Officer” Tatum.

And commenter “DK” on X (formerly Twitter):

What normally happens when a Senate seat falls vacant?

Typically, when a Senator dies, resigns, or suffers expulsion, his State’s governor appoints his successor. (See the Constitution.) Originally, when legislatures chose Senators, legislators could fill Senate vacancies immediately. Or if the vacancy happened when the legislature was in recess, the governor could fill the vacancy – temporarily. When the legislature next convened, they would assign a replacement until the end of the original Senator’s term. (Article I Section 3 Paragraph 2.)

Amendment XVII, providing for popular election of Senators, changed that. But what most people miss about gubernatorial appointments of interim Senators, is that the Constitution leaves to each State legislature the power to decide how to fill a Senate vacancy. Amendment XVII reads in relevant part:

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.

May empower. Under the Constitution, a vacant seat in the Senate could stay vacant until the people voted. Nor does the Constitution set a deadline for special Senate elections.

Until recently, Kentucky law allowed that State’s governor to appoint whomever he pleased as an Interim Senator. He then would serve until the next federal (Presidential or Midterm) election. But in 2021, the legislature changed that yet again. And – here’s the irony – Mitch McConnell himself suggested the change.

The Kentucky Senate appointment law

The Louisville Courier-Journal gives the best description of the current Senate appointment law (Senate Bill 228). It provides that the governor may no longer appoint whomever he pleases. Instead, the executive committee of the State Party of which the now-resigned/expelled/deceased Senator is/was a member, chooses three candidates and sends their names to the governor. He then has 21 days to appoint the Interim Senator among those three.

But the election to fill the vacancy permanently would not necessarily wait until the next regularly scheduled federal election. If the vacancy happened in the election year, but three months or longer ahead of the scheduled election, the general election would take place then. If the vacancy happened later than three months ahead of time, and an election was scheduled next year, then the vacancy election would happen in the following year. But if there was no election scheduled for the following year – or if the vacancy happened in an off year – then the governor must, within thirty days of the vacancy happening, call for a special election. That election must take place within 60 to 90 days.

Furthermore, this would be no ordinary election with primaries. Instead, any person, nominated by the petition of a thousand or more voters, could take part as a candidate. A candidate winning with more than 50 percent of the vote becomes the next Senator immediately. If no one gains such a majority, the winner and runner-up go to a runoff within 70 days.

How Mitch McConnell got that passed

No one knows why Mitch McConnell, in 2021, suggested that Kentucky’s legislature change its law. When he did, speculation was rife that he was worried that he might not complete his term. He insisted he intended to stay: “I’m not going anywhere.” But the legislature did pass its bill. Gov. Andy Beshear (D-Ky.) vetoed the bill, but the legislature easily overrode him. That override vote was one of two dozen such votes in March of 2021.

Mitch McConnell had already suffered a health scare two years before. In 2019 he fell and broke his shoulder. The country also remembers that a neighbor of Sen. Rand Paul (R-Ky.), the junior Senator, assaulted him on his front lawn while he was mowing it. The alleged motive was a dispute over how the two maintained their yards.

Given these events, the Kentucky legislature might have had reason to fear that either of State’s two Republican Senators might not last their terms. Sen. Paul won re-election last Midterms, and Sen. McConnell will come up for reelection in the 2026 Midterms.

What could happen now?

In suggesting that change to the law, Mitch McConnell removed the last objection any Republican could have to his resigning. Not that he plans to resign – the Louisville Courier-Journal quotes McConnell’s office as saying he plans to “serve his full term.” Nevertheless, the pressure for him to resign is definitely on.

Under the old law, Gov. Beshear could have sent a Democrat to the Senate. That Interim Senator then could serve one year, three months, and two weeks before the upcoming Presidential Election. At that time, his replacement would enter the Senate at once.

If Mitch resigns now, the Kentucky Republican Executive Committee would turn its immediate attention to naming names for appointment. But then, Gov. Beshear might sue to make Senate vacancy law revert to status quo ante the change. The Kentucky Constitution, Section 152, provides that the governor “shall fill” at-large State vacancies.

Except as otherwise provided in this Constitution, vacancies in all elective offices shall be filled by election or appointment, as follows: If the unexpired term will end at the next succeeding annual election at which either city, town, county, district or State officers are to be elected, the office shall be filled by appointment for the remainder of the term. If the unexpired term will not end at the next succeeding annual election at which either city, town, county, district or State officers are to be elected, and if three months intervene before said succeeding annual election at which either city, town, county, district or State officers are to be elected, the office shall be filled by appointment until said election, and then said vacancy shall be filled by election for the remainder of the term. If three months do not intervene between the happening of said vacancy and the next succeeding election at which city, town, county, district or State officers are to be elected, the office shall be filled by appointment until the second succeeding annual election at which city, town, county, district or State officers are to be elected; and then, if any part of the term remains unexpired, the office shall be filled by election until the regular time for the election of officers to fill said offices. Vacancies in all offices for the State at large, or for districts larger than a county, shall be filled by appointment of the Governor; all other appointments shall be made as may be prescribed by law. No person shall ever be appointed a member of the General Assembly, but vacancies therein may be filled at a special election, in such manner as may be provided by law.

But is a United States Senator an example of a State vacancy? No. Section 152 does not so provide. And the Supreme Court of New Jersey held in 2010 that United States Senators were not subject to a State recall. Cmte. Recall Robert Menendez v. Menendez, Case A-86 (2009 Term).

Beshear also held that Amendment XVII of the federal Constitution does not seem to vest in a State legislature the authority to restrict how a governor may fill a Senate vacancy. But, since the text says the legislature may authorize a governor to fill such a vacancy, such authorization might come with restrictions.

And if the challenge fails or does not happen

So if the challenge fails – or if Gov. Beshear doesn’t bother with it – then he must, within 21 days, send one of the Kentucky Republican Executive Committee’s three candidates to the Senate. Then he probably would issue a writ of election for the “jungle primary” to replace McConnell permanently. Kentucky elects State officers, including its governor, lieutenant governor, and attorney general, every four years – and 2023 is the year. So the “jungle primary” election would take place this year.

Oddly, Gov. Beshear’s power of incumbency is still strong, though he is a Democrat seeking reelection in a State:

• Sending two Republicans to the Senate,
• Having a Republican as Attorney General (who happens to be running against him), and
• With veto-proof majorities in both chambers of its legislature.

Were he to challenge the vacancy law, his standing in the polls might fall critically. He’s already in trouble over his apparent favoring of men who have themselves surgically mutilated and/or hormonally poisoned so that they may compete as women in women’s sports. So he might not want to risk the voters’ wrath. In that case the “jungle primary” Senate election would suddenly make Kentucky’s State officers’ election much more interesting.

So long, Mitch McConnell; it’s been good to know you

In the meantime, the U.S. Senate Republican Conference would immediately choose another Floor Leader. The Senate is full of Senators who would do a better job than Mitch McConnell has lately done. His sacrifice of a Senate majority in Midterms is reason enough for patriotic Americans to want him to resign. Let the Democrats play the Weekend at Bernie’s game. Republicans need a new Senate Floor Leader – but should also thank Mitch McConnell for making it possible to get one without making the balance of power worse than it already is.