Sustained Outrage

No judicial confirmations until after the election

In case you missed it, the 111th Congress adjourned this week to allow members to hit the campaign trail, meaning that there will be no movement on any of the 23 judicial nominees currently awaiting senate approval until after the Nov. 2 election.

In response, President Obama fired off a strongly-worded letter, expressing his disappointment that more of his nominees haven’t been confirmed. As he has previously, Obama specifically referred to Albert Diaz, a North Carolina judge up for a seat on the U.S. Court of Appeals for the 4th Circuit. and the New York Times’ political blog The Caucus both had items on the president’s missive.

Here’s the letter, via the New York Times:

THE WHITE HOUSE Office of the Press Secretary

For Immediate Release September 30, 2010


September 30, 2010

The Honorable Harry Reid
Majority Leader
United States Senate
Washington, D.C. 20510

The Honorable Patrick J. Leahy
Judiciary Committee
United States Senate
Washington, D.C. 20510

The Honorable Mitch McConnell
Republican Leader
United States Senate
Washington, D.C. 20510

The Honorable Jeff Sessions
Ranking Member
Judiciary Committee
United States Senate
Washington, D.C. 20510

Dear Senator Reid, Senator McConnell, Senator Leahy, and Senator Sessions:

I write to express my concern with the pace of judicial confirmations in the United States Senate. Yesterday, the Senate recessed without confirming a single one of the 23 Federal judicial nominations pending on the Executive Calendar. The Federal judiciary and the American people it serves suffer the most from this unprecedented obstruction. One in eight seats on the Federal bench sits empty, and the Administrative Office of the U.S. Courts has declared that many of those vacancies constitute judicial emergencies. Despite the urgent and pressing need to fill these important posts, a minority of Senators has systematically and irresponsibly used procedural maneuvers to block or delay confirmation votes on judicial nominees – including nominees that have strong bipartisan support and the most distinguished records. The minority has even been blocking non-controversial nominees – a dramatic shift from past practice that could cause a crisis in the judiciary.

The Judiciary Committee has promptly considered my judicial nominees. Nonetheless, judicial confirmation rates in this Congress have reached an all-time low. At this point in the prior Administration (107th Congress), the Senate had confirmed 61% of the President’s judicial nominations. By contrast, the Senate has confirmed less than half of the judicial nominees it has received in my Administration. Nominees in the 107th Congress waited less than a month on the floor of the Senate before a vote on their confirmation. The men and women whom I have nominated who have been confirmed to the Courts of Appeals waited five times longer and those confirmed to the District Courts waited three times longer for final votes.

Right now, 23 judicial nominees await simple up-or-down votes. All of these nominees have the strongest backing from their home-state Senators – a fact that usually counsels in favor of swift confirmation, rather than delay. Sixteen of those men and women received unanimous support in the Judiciary Committee. Nearly half of the nominees on the floor were selected for seats that have gone without judges for anywhere between 200 and 1,600 days. But despite these compelling circumstances, and the distinguished careers led by these candidates, these nominations have been blocked.

Judge Albert Diaz, the well-respected state court judge I nominated to the U.S. Court of Appeals for the Fourth Circuit, has waited 245 days for an up-or-down vote – more than 8 months. Before becoming a judge, Diaz served for over 10 years in the United States Marine Corps as an attorney and military judge. If confirmed, he would be the first Hispanic to sit on the Fourth Circuit. The seat to which he was nominated has been declared a judicial emergency. Judge Diaz has the strong support of both of North Carolina’s Senators. Senator Burr has publicly advocated for Judge Diaz to get a final vote by the Senate. And just before the August recess, Senator Hagan went to the floor of the Senate to ask for an up-or-down vote for Judge Diaz. Her request was denied.

We are seeing in this case what we have seen in all too many others: resistance to highly qualified candidates who, if put to a vote, would be unanimously confirmed, or confirmed with virtually no opposition. For example, Judge Beverly Martin waited 132 days for a floor vote – despite being strongly backed by both of Georgia’s Republican Senators. When the Senate finally held a vote, she was confirmed to the Eleventh Circuit unanimously. Jane Stranch was recently confirmed by an overwhelming majority of the Senate, after waiting almost 300 days for a final vote. Even District Court nominees have waited 3 or more months for confirmation votes – only to be confirmed unanimously.

Proceeding this way will put our judiciary on a dangerous course, as the Department of Justice projects that fully half of the Federal judiciary will be vacant by 2020 if we continue on the current pace of judicial confirmations. The real harm of this political game-playing falls on the American people, who turn to the courts for justice. By denying these nominees a simple up-or- down vote, the Republican leadership is undermining the ability of our courts to deliver justice to those in need. All Americans depend on having well-qualified men and women on the bench to resolve important legal matters – from working mothers seeking timely compensation for their employment discrimination claims to communities hoping for swift punishment for perpetrators of crimes to small business owners seeking protection from unfair and anticompetitive practices.

As a former Senator, I have the greatest respect for the Senate’s role in providing advice and consent on judicial nominations. If there is a genuine concern about the qualifications of judicial nominees, that is a debate I welcome. But the consistent refusal to move promptly to have that debate, or to confirm even those nominees with broad, bipartisan support, does a disservice to the greatest traditions of this body and the American people it serves. In the 107th Congress, the Judiciary Committee reported 100 judicial nominees, and all of them were confirmed by the Senate before the end of that Congress. I urge the Senate to similarly consider and confirm my judicial nominees.


If the president’s polite concern sounds familiar, that’s because it is.

Here’s a thought: What if, during the five-week recess, the president nominated a flurry of candidates for the federal bench? This would accomplish two things. First, it would preempt Senate Republicans for blaming the lack of confirmations — which, as I and others have noted before, is creating a judicial vacancy crisis — on the president and the relative scarcity of his nominations.

But more importantly, it would send the message that President Obama cares about the federal judiciary, that it is a priority for his administration, and he is not going to let the Republicans thwart his nominees just by using obstructionism to run out the clock.

U.S. Attorney General Eric Holder published an op-ed in the Washington Post today, decrying the “confirmation crisis” that has seen the number of federal judicial vacancies double during President Obama’s time in office. “The federal judicial system that has been a rightful source of pride for the United States — the system on which we all depend for a prompt and fair hearing of our cases when we need to call on the law — is stressed to the breaking point,” Holder wrote. He noted that 259,000 civil cases and 75,000 criminal cases were filed in federal courts in 2009, enough to strain the court system even without almost one in eight judgeships sitting empty.

The problem is about to get worse. Because of projected retirements and other demographic changes, the number of annual new vacancies in the next decade will be 33 percent greater than in the past three decades. If the historic pace of Senate confirmations continues, one third of the federal judiciary will be vacant by 2020. If we stay on the pace that the Senate has set in the past two years — the slowest pace of confirmations in history — fully half the federal judiciary will be vacant by 2020.

As Justice Anthony Kennedy recently noted, the “rule of law is imperiled” if these important judicial vacancies remain unfilled. In 2005, Senate Republican leader Mitch McConnell called on Congress to return to the way the Senate operated for over 200 years, and give nominees who have majority support in the Senate an up-or-down floor vote.

I agree. It’s time to address the crisis in our courts. It’s time to confirm these judges.

Holder’s reference to Justice Kennedy came from an article in the Los Angeles Times about the increasingly politicized confirmation process, and how the battles over nominees has “spread like a virus” from the appeals courts to the district courts, according to one observer. Here’s the entire passage pertaining to Justice Kennedy:

Supreme Court Justice Anthony M. Kennedy, on hand for the 9th Circuit retreat, took note of the confirmation conflicts without assigning guilt to either political faction.

“It’s important for the public to understand that the excellence of the federal judiciary is at risk,” Kennedy said. “If judicial excellence is cast upon a sea of congressional indifference, the rule of law is imperiled.”

Holder’s piece also mentions Albert Diaz, the North Carolina judge up for a seat on the U.S. Court of Appeals for the 4th Circuit, who was nominated by Obama in November, passed (unanimously) out of committee in January, and, as I noted last week, now holds the dubious distinction of having the longest active wait for a confirmation vote.

In other confirmation news, over on, Dahlia Lithwick and Carl Tobias, a law professor at the University of Richmond and a friend of Sustained Outrage, took “one last crack at scaring your pants off with some strictly nonpartisan facts about the dangers of judicial vacancies” in their article “Vacant Stares: Why don’t Americans worry about how an understaffed federal bench is hazardous to their health?”

And the Alliance for Justice published a report yesterday that focused on judicial emergencies, noting that almost half (48) of the 103 current openings have been declared by the Administrative Office of the U.S. Courts. The 4th Circuit opening that Diaz has been nominated to is one of those emergencies, which means that West Virginia, as part of the 4th Circuit, is among the 30 states affected.

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The state Supreme Court this morning issued a significant decision that overturns a Jefferson County ruling that had threatened to significantly narrow the scope of West Virginia’s public records disclosure law.

Justice Menis Ketchum delivered the court’s opinion, which is posted here.

In one key point of law, the court found:

Under the West Virginia Freedom of Information Act (FOIA), W.Va. Code, 29B-1-1, et seq., a “public record” includes any writing in the possession of a public body that relates to the conduct of the public’s business which is not specifically exempt from disclosure by W.Va. Code, 29B-1-4, even though the writing was not prepared by, on behalf of, or at the request of, the public body.

Recall from previous posts (see here, here and here) that Jefferson Circuit Judge David Sanders had ruled that The Shepherdstown Observer could not obtain copies of referendum petitions because the petitions were not created by the local government.

But justices concluded otherwise:

To adopt the position of the Clerk, the Legislature’s definition of “public record” would need to read: “’Public record’ means any writing . . ..” The Clerk’s suggested definition of a public record would severely limit the scope of the Act and the right of every person to “inspect or copy any public record of a public body in this state.” W.Va. Code, 29B-1-3(1) [1992]. It is obvious that the Legislature did not intend such a restrictive interpretation, and meant for the word “includes” to be given its common, ordinary and accepted meaning, which is that of a word of enlargement. Davis Memorial Hospital, 222 W.Va. at 684, 671 S.E.2d at 689 (“[t]he term ‘includ[es]’ in a statute is to be dealt with as a word of enlargement”).

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West Virginia’s Supreme Court is scheduled tomorrow to hear an important case over the future of our state parks. Justices will consider an appeal of the June 2009 ruling by Logan Circuit Judge Roger Perry to allow natural gas drilling in Chief Logan State Park.

We’ve covered this issue before here, here, here and here, and also noted that this may be part of a larger push for more gas drilling on West Virginia’s public lands.

At tomorrow’s argument, the state Department of Environmental Protection will ask the justices to overturn Perry’s ruling, which itself overturned an earlier decision by DEP to deny drilling permits sought by Cabot Oil and Gas.  In December 2007, then-DEP Secretary Stephanie Timmermeyer turned down Cabot’s applications, citing a section of state law that prohibits mineral extraction in state parks.

In a legal brief available online here, the DEP argues that Judge Perry was wrong to conclude that the agency had no authority to use that section of state law — which is actually included a section spelling out duties of the state Division of Natural Resources in overseeing parks — to deny Cabot’s drilling permits:

This matter boils down to fourteen words in a statute, section 20-5-2(b)(8) of the West Virginia Code, which instructs that the State “may not permit … the exploitation of minerals … for commercial purposes … in any state park.” There is nothing ambiguous or unclear about this statutory prohibition. The law does not provide that the State may only prevent the commercial exploitation of coal, oil, or natural gas within one of its parks if it happens to own the minerals itself, or that it must permit extraction if there have long been operating wells in the subject park or in others, or that the bar is without effect if the State has previously acquiesced in a deed or contract. To the contrary, the Legislature plainly decreed that, from the point at which it acted, no exploitation of minerals in any state park is to be allowed.

… The words are there in black and white, there is no gray.

In enforcing oil and gas laws, the DEP argues, agency officials are required by law to do so in a manner that “supplements and complements” the environmental policies and programs of other West Virginia agencies:

Thus, if DNR is prohibited by law from allowing the exploitation of natural resources underlying a State park because the Legislature has made a judgment that this sort of development cannot be squared with the need to protect the park’s unique surface aesthetic, that is precisely the sort of environmental policy that DEP is required to acknowledge and to which it must conform its own conduct.

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On Wednesday, in remarks at the Congressional Hispanic Caucus Institute’s annual awards gala, President Obama brought up Albert Diaz, his last remaining nominee to the U.S. Court of Appeals for the 4th Circuit, citing the North Carolina judge as an example of how Republicans (specifically Senate Minority Leader Mitch McConnell, R-Ky.) have delayed confirmation votes for his nominees.

Here’s what the president said:

Right now, there are 21 judges who’ve been held up for months while their courts have sat empty.  Three of them are outstanding Latinos, like Judge Albert Diaz, who I nominated to the Fourth Circuit Court.  He’s been waiting for 10 months.  This is a widely respected state court judge, military judge, and Marine Corps attorney.  He was approved unanimously by the Judiciary Committee.  But just last month, the Senate Republican leader objected to a vote on his confirmation yet again.  And when he was asked why, he basically admitted it was simply partisan payback.  Partisan payback.

We can’t afford that kind of game-playing right now.  We need serious leaders for serious times.  That’s the kind of leadership this moment demands.  That is what we need right now.  Because when I get out of this town and I’m meeting with people, talking to folks, nobody is asking me, “Hey, Barack, which party is scoring more points?”  Nobody is saying, “Oh, don’t worry about us, I just want you to do what’s best for November.”

As I pointed out on Tuesday, some people are calling the current number of vacancies in the federal judiciary a crisis. Diaz, who was approved unanimously by the Senate Judiciary Committee on Jan. 28, has now been waiting longer than any other judicial nominee still pending.

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State Supreme Court to hear black lung ethics case

Updated: You can read the story about Wednesday’s arguments from today’s Gazette here.

Oral arguments are scheduled at the state Supreme Court today in the legal ethics case against Douglas Smoot, a Jackson Kelly lawyer who defends coal companies against black lung claims from former miners.

In 2009, the state bar’s Office of Disciplinary Counsel filed a formal charge against Smoot, alleging that in 2001, he wrongly withheld evidence from a miner with an eighth-grade education who was representing himself at the time. (You can read the Statement of Charge here, and Smoot’s response here.)

During two days of testimony in June 2009, Smoot acknowledged that he had removed the “narrative summary” portion of a doctor’s report before turning it over to over to Elmer Daugherty, a retired miner who spent 42 years underground. Smoot said he decided not to disclose this portion of the doctor’s report (without telling Daugherty about the missing portion) because he found the doctor’s opinion — as opposed to more objective, factual tests and X-rays — to be “equivocal” and “contradictory from one page to the next.”

But lawyer Robert Cohen, who frequently represented miners seeking black lung benefits and was eventually hired by Daugherty (and who is now a commissioner with the Federal Mine Safety and Health Review Commission), testified that the portion of the doctor’s report withheld by Smoot was “highly probative,” and represented the kind of reasoned medical opinion that judges rely on when deciding black lung cases. It was a clear, unequivocal indication that Daugherty had black lung disease, Cohen said at the time, “and any suggestion otherwise is just wrong.”

The three-member panel overseeing the case recommended that the charges against be dismissed, which prompted the Office of Disciplinary Counsel to appeal the case to the state Supreme Court. You can read the ODC’s appeal here, Smoot’s response here, and the ODC’s reply to Smoot here.

Interestingly, three parties filed “friend of the court” briefs in the case, urging the justices to reject the panel’s recommendation and to find that Smoot committed an ethical violation.

Here are excerpts from the amicus briefs filed by the United Mine Workers of America:

To find, as the Panel does, that Attorney Smoot altered Dr. Zaldivar’s medical report because he was following a “common practice” or was somehow confused by the “complexity” of Black Lung practice is absurd, especially in light of the fact that Attorney Smoot submitted to the same [Administrative Law Judge]  in the same case the complete medical exam report of Dr. Robert Crisalli, which included the narrative portion favorable to Attorney Smoot’s client. Attorney Smoot is an experienced Black Lung practitioner who has made a name for himself and his firm defeating coal miners’ Black Lung claims. The Panel’s decision to give him “the benefit of the doubt on his intent” is not only inconsistent with the applicable legal standard, it ignores facts tending to show Smoot altered Dr. Zaldivar’s exam report to gain an unfair advantage over the pro se claimant.

And the National Black Lung Association and Appalachian Citizens’ Law Center, Inc.:

The hearing panel was appropriately “bothered” by the practice of turning over an adverse medical examination report without disclosing that it was disassembled and incomplete but felt “constrained by the evidence…including all [Smoot’s] witnesses who testified that the actions of [Smoot] were consistent with Black Lung practice.” However, there are two significant errors in the panel’s assessment of the record. First, the fact that others may engage in misleading conduct does not, in any case, excuse [Smoot] any more than the speeder who protests that he was not going any faster than others who were also speeding. No matter how many attorneys send out incomplete “exam reports,” particularly to pro se litigants, the conduct still involves misrepresentation.

Second, the finding is factually incorrect. When Mr. Smoot was asked if he could name a single other West Virginia attorney who engaged in this practice, the only person he could name was Bill Mattingly, another attorney in his firm.

And by West Virginia Attorney General Darrell McGraw:

[T]he Report of the Hearing Panel Subcommittee incorrectly concluded that because it is a practice within the Federal Black Lung Bar not to provide complete records, that “[t]his leaves the Panel in the position of judging the motive of [Smoot] when he disassembled and provided only part of the report,” and that the “Panel is giving the Respondent the benefit of the doubt on his intent based on all of the above.” While fraud and dishonesty might require intent or motive, misrepresentation does not.

You can read earlier coverage by Ken Ward on Sustained Outrage here and over at Coal Tattoo here. A live webcast of the oral arguments is available here.

Major FOIA case at W.Va. Supreme Court today

We’ve reported before on the important Freedom of Information Act case in which The Shepherdstown Observer is trying to get copies of the petitions filed to get a zoning matter on the ballot in Jefferson County.

Well, today’s the day that the state Supreme Court will take up the matter. Justices are set to hear oral arguments. The case is listed 5th on the court’s argument docket.

You can read the briefs here, and tune in later for the Webcast here.  The Court begins hearing cases at 10 a.m., so it’s not clear exactly when the FOIA case will come up … so stay tuned.

And check out our previous posts on this case here, here, here and here.

Senate confirms Wynn but not Diaz

Last night, after the Senate confirmed Elena Kagan to become an Associate Justice on the U.S. Supreme Court, it also approved four federal judges, including North Carolina Judge James A. Wynn Jr. to a seat on the U.S. Court of Appeals for the 4th Circuit.

Wynn’s confirmation means that 13 of the 15 seats on the 4th Circuit are now occupied, the highest number for the very busy appeals court in years. It also, the Greensboro News & Record rightly points out, gives North Carolina a much-deserved second judge on the court. North Carolina is the biggest state in the 4th Circuit’s jurisdiction (which also includes West Virginia, Maryland, South Carolina and Virginia), and has been under-represented since Judge James D. Phillips Jr. took senior status in 1994. In fact, Wynn will fill Phillips’ seat, which has been unoccupied for 16 years.

Yesterday’s confirmations, however, did not include North Carolina Judge Albert Diaz, who, like Wynn, was nominated for a seat on the 4th Circuit by President Obama on Nov. 4. Diaz and Wynn appeared on the same panel together before the Senate Judiciary Committee, and passed out of committee together on Jan. 28. Ironically, Wynn garnered one vote against him in committee, while Diaz was approved by a unanimous, 19-0 vote.

James Wynn and Albert Diaz are not a package deal, and their fates need not be tied together just because they have moved through the confirmation process at the same time. But it is hard to see the logic of confirming one and not the other without someone coming forward to raise a specific objection to Diaz’s qualifications.

Most likely, the lack of action on Diaz is meant to serve as a reminder from Republicans that they will continue to slow-walk President Obama’s nominees through the confirmation process. There are still 103 vacancies in the federal judiciary, and that number has hovered around 100 for months, even as nominees sit in the pipeline.

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Tracking felonies

Sometimes, covering crime and courts, the media gets so focused on a particular case that we forget to take a step back and look at the bigger picture. Thankfully, reports like this study from the Bureau of Justice Statistics provide a compelling snapshot of how felonies work their way through the justice system.

The report, Felony Defendants in Large Urban Counties, 2006, looked at the 58,100 felony cases initiated in May 2006. Here are some of the key findings:

— Since 1990, violent crimes have inched downward, from 27 percent of felonies to 23 percent in 2006. The percentage charged with drug crimes have gone up, from 34 percent in 1990 (with a quick dip to 30 percent in 1992) to 37 percent in 2006. Property crimes have also gone down, from a high of 35 percent in 1994 to 29 percent in 2006.

— Defendants seem to be getting older. In 1990, only 10 percent of defendants were 40 or older, and that has risen steadily to 25 percent in 2006. The percentage of defendants under 25 has decreased, from 40 percent in 1990 to 33 percent in 2006.

— More defendants have criminal histories and convictions. In 1992, 55 percent of defendants had a previous felony arrest, compared with 64 percent in 2006. Those with prior felony convictions rose from 36 percent in 1990 to 43 percent in 2006.

— Almost one in three of the defendants charged, 31 percent, were already involved with the criminal justice system, either by being in custody, awaiting trial, or on probation or parole, when they were arrested on the new offense.

— Roughly three out of five defendants charged were released before the case was resolved. Of those, 33 percent engaged in some sort of pretrial misconduct. People facing drug offenses were more likely to have issues during their release (37 percent) than those with pending violent felony charges (26 percent).

The study also looked at typical outcomes for 100 defendants facing charges. Of those, 42 would remain in custody pending trial, while 58 would be released. Eight typically enter into a pretrial diversion with prosecutors, 23 have their cases dismissed, and 69 are prosecuted. Of those 69, four typically go to trial and 65 plead guilty. Of the trials, three result in convictions, and one ends in an acquittal. Of the 68 defendants who are convicted, 56 end in felony convictions, with 11 resulting in misdemeanor convictions. Two dozen will be sentenced to prison, two dozen sentenced to jail, 17 put on probation, and three have other sentences.

Let’s think about that: 95 percent of the convictions come from guilty pleas. Of those people who were convicted, 72 percent were convicted on the original charge for which they were arrested. Seven out of 10 of those convicted ended up incarcerated, either in prison or jail.

Remember, the study only looked at the 75 biggest counties in America, which naturally include some pretty big cities. At 191,000 people, West Virginia’s biggest county, Kanawha, doesn’t even come close. (El Paso County, Texas, is #75, and it has 750,000 residents.) But it still provides an interesting window into how felony cases are handled.

So, what kind of offenses were most likely to end in conviction? The answer may surprise you.

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In this July 26, 2004, file photo Sen. Robert Byrd, D-W. Va., holds a copy of the Constitution he keeps in his pocket as he speaks at the launching of his book “Losing America: Confronting a Reckless and Arrogant Presidency,” at a bookstore in New York. AP photo.

Yesterday’s announcement that a special election to fill the late Sen. Robert C. Byrd’s seat won’t be held until 2012 has produced a lot of commentary already — much of it not very, well, thoughtful.

I’m certainly not a Constitutional lawyer, but I thought readers might like a little more background, along with some links to relevant information so they can put all of this in context.

In announcing her views on how this should be handled, Secretary of State Natalie Tennant pointed to Section 3-10 of the West Virginia Code, which says:

Any vacancy occurring in the office of secretary of state, auditor, treasurer, attorney general, commissioner of agriculture, United States senator, judge of the supreme court of appeals or in any office created or made elective to be filled by the voters of the entire state, judge of a circuit court or judge of a family court is filled by the governor of the state by appointment. If the unexpired term of a judge of the supreme court of appeals, a judge of the circuit court or judge of a family court is for less than two years or if the unexpired term of any other office named in this section is for a period of less than two years and six months, the appointment to fill the vacancy is for the unexpired term. If the unexpired term of any office is for a longer period than above specified, the appointment is until a successor to the office has timely filed a certificate of candidacy, has been nominated at the primary election next following such timely filing and has thereafter been elected and qualified to fill the unexpired term.

Tennant also pointed to a 1994 West Virginia Supreme Court decision, involving a Republican challenge to the appointment of current U.S. District Judge Irene Berger to the Kanawha Circuit Court. Importantly, this state court ruling referenced — and at least partly relied on — a 1968 federal appeals court ruling concerning the filling of the Senate vacancy created by the assassination of Sen. Robert F. Kennedy that June.

The underlying legal issue in all of this is the 17th Amendment to the United States Constitution, which created popular election of U.S. Senators, their selection by election or appointment by state legislators. Here’s the text of the amendment:

The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures.

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.

This amendment shall not be so construed as to affect the election or term of any Senator chosen before it becomes valid as part of the Constitution.

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