McConnell facing effort to depose him as Leader

Sen. Mitch McConnell (R-Ky.), after suffering a second mini-stroke (or is it Parkinsonism?) three days ago, faces a new threat. Several Senators are thinking seriously of forcing a meeting to discuss his leadership position.

McConnell healthy enough – or is he?

Sen. McConnell, at a press event for the Northern Kentucky Chamber of Commerce in Covington, Kentucky, lapsed into dead silence for thirty seconds. The attitude of his aides suggests that they were afraid of this. But it also suggests they have no solution other than to wait it out when it happens.

Two “Cable TV doctors,” Marc Siegel of Fox News and Sanjay Gupta of CNN, suggest McConnell might suffer from Parkinsonism. If his aides know that he is subject to such spells, but they are not strokes, then they know to wait it out. One would not “wait out” a stroke; instead they would order someone to call an ambulance at once, says Siegel.

Dr. Gupta, at CNN, said the Senator’s face displays the mask-like appearance of a Parkinson’s patient having a spell. He also noticed that his aides are clearly accustomed to this and know to wait it out. But Dr. Siegel said something else: that McConnell ought to consider resigning as Leader at least.

Dr. Brian Monahan, Attending Physician to the Congress, cleared the Senator for continuation in his duties. In addition, according to The Epoch Times, Monahan suggested McConnell was still recovering from a fall he took in March. In point of fact, he suffered a concussion in that episode. The Epoch Times quotes Nick Brana, chairman of a “People’s Party,” as saying McConnell is simply too old to serve. Mr. Brana actually thinks many in Washington, D.C. are too old to serve.

Elder abuse – and a country of sick old men

Mr. Brana specifically spoke of the “geriatric swamp” and called Washington “an assisted living facility for warmongers.” His so-called People’s Party (established 2017) has a platform resembling those of several Western pacifist parties during the Cold War. So he might or might not appreciate this irony: the complaints he and others are making, echo the observations many Westerners made of the Political Bureau and Secretariat of the Communist Party of the Soviet Union, following the death of Party General Secretary Leonid I. Brezhnev.

But several Republican Senators are doing more than complain. They’re talking about forcing a special conference on the leadership of their caucus. Any five Republican Senators can force such a meeting. The three most likely candidates to replace McConnell as Republican Floor Leader are Senators John Thune (R-S.D.), Republican Whip; John Cornyn (R-Texas), former head of the National Republican Senate Committee; and John Barrasso (R-Wyo.), Senate Republican Conference Chairman. Barrasso was standing next to McConnell when he had a similar episode a month ago.

Kentucky politics and Interim Senator appointment process

USA Today speculated today on the idea of McConnell resigning from the Senate altogether, and who would then replace him. Mike Bryant, head of the Breathitt County Republican Party, has called repeatedly for term limits.

If congressional term limits were in place, many of these issues would simply be non-existent.

M. J. Haddix, vice-chairman of the Gallatin County Republicans, has called for term and age limits. The Constitution prescribes age minimums for Senators, Representatives, and the President and Vice-President, but no limits. Amendment XXII sets a term limit for the President, but no other civil officer is subject to such a limit.

Those closest to McConnell says he does not wish to open his Senate seat this close to an election. Whether they mean the Governor’s race this fall, or the Presidential and Congressional election next year, is not clear.

Under Kentucky law, the Kentucky Republican Executive Committee would name three names and tell Gov. Andy Beshear (D-Ky.) to choose one of those three and only one of those three. Kentucky Republicans would have no shortage of candidates for such a nomination. But the Louisville Courier-Journal said the governor would not commit to obeying that law. He vetoed the law, only to have the legislature override him. So he might appoint a Democrat as Interim Senator, daring Republicans to sue him. In court he would argue that it was unconstitutional to constrain a Governor in the appointment of an Interim Senator.

A Constitutional challenge that McConnell wants to avoid

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.

Some scholars insist that “may empower” also means “may do so under whatever conditions the legislature sees fit to impose.” Others suggest that such “empowerment” must be absolute as to the range of a governor’s choice. This question also raises – again – the Independent Legislature Theory, under which State legislatures, whenever the Constitution empowers them to do anything, may do that thing without regard to or recognition of the authorities of State governors, or courts, to constrain their actions in any way, shape or form. Rep. Timothy K. Moore (R-Cleveland, N.C.), Speaker of the North Carolina House of Representatives, tried to argue that point in the context of Congressional redistricting. He lost. Moore v. Harper, 600 U.S. ____ (2023).

McConnell had put that provision into Kentucky law. But now he might not be willing to risk having Gov. Beshear test that. This although nine other States constrain their governors, in appointing Interim Senators, to appoint them from the same Party as a resigned, expelled, or deceased Senator. (Four other States have not empowered their governors to appoint Interim Senators at all.)

McConnell has waited too long to resign and have a special election happen this November. But if he resigns in July of 2024, Kentucky would hold a special election in November 2024. So even a Democratic Interim Senator would not be allowed to serve much longer than 90 days.