The XX Factor: What women really think.

Specter v. Souter

The spectacle of Senator Arlen Specter surely had nothing to do with Justice David Souter's timing—if indeed reports of his retirement plans are true. But it's a pointed, and also rather poignant, contrast. The almost-80-year-old guy who's got every reason to hang it up just can't let go—and hogs the spotlight by grabbing the chance to shift the balance in the Senate. I'm with you, June and Emily, in thinking the time had perhaps come for the gentleman from Pennsylvania to go potter in the garden. Meanwhile, the justice who hasn't yet hit 70 (at 69, Souter's the average age of those now on the bench) reportedly can't wait to head for the hills—and he is giving up a historic role. Maybe the two of them should have had lunch and swapped career advice, though as Souter chomped his apple I somehow doubt he would have changed his independent mind (assuming it is now made up). That's one of the many reasons he will be missed.

Caroline's Law?

I'm glad to see Caroline Kennedy out of the running as well. But what mainly strikes me about the travails of this season's Senate vacancies is a point Slate's Bruce Reed made weeks ago: They illustrate what a bad idea it is to give governors the power to fill them. The voters of New York chose David Paterson for one office, not two. Thirty-nine states fill vacancies this way, as the 17th Amendment ostensibly allows. Tom Geoghegan argued recently that the amendment should, in fact, be read otherwise, because the relevant passage starts by saying that when there is an open Senate mid-election in their state, governors "shall issue writs of elections to fill such vacancies." The amendment then goes on to allow a state legislature to "empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct," but Geoghegan's point is that this subsidiary clause has eaten the main directive. He also points out that the Supreme Court has never really weighed in: Instead of interpreting the 17th for themselves, the justices merely summarily affirmed a lower-court decision in 1969 upholding a governor's choosing of a senator. (It was Gov. Nelson Rockefeller's appointment of Robert F. Kennedy's replacement, in lieu of a special election.) 

That doesn't mean the Supreme Court would tackle the question now. Courts are notoriously reluctant to poke their noses into this kind of exercise of power by another branch of government. But the 39 states with automatic handoffs to the governor could take the ball away and give it back to the voters via special election. Call it the Thank You Caroline Act.