Vacancies happen, and the record is full of appointments to fill Senate vacancies by either governors or State legislatures. Precedent for replacing a disabled Senator who has no medical expectation of ever resuming his duties is irrelevant.
Why is that? Well, consider the long-standing State justification for appointing new Senators to fill vacancies, for whatever reason: To insure the State is fully represented in the United States Senate. It has always been all about equality of State representation within the U.S. Senate.
The United States Constitution has always recognized the prerogative of the States to fill Senate vacancies with these words: "...if Vacancies happen by Resignation, or otherwise, during the Recess of the Legislature of any State, the Executive thereof may make temporary Appointments until the next Meeting of the Legislature, which shall then fill such Vacancies."
Senators are a different form of representation in comparison to members of the House of Representatives. House of Representatives are directly represenative of the people. The Senate on the other hand, represents State interests as "political and coequal societies," that is, "operate on the political bodies composing the Confederacy, in their political capacities."
In other words, Representatives look out for the interests of the people, the Senate looks out for the interest of the State as a political body. This is why States have direct powers over vacancies in their federal representation (House is a national body, Senate is a federal body.)
The Seventeenth Amendment did not change any of the above principles; in fact, you could say it changed nothing. By the time of its adoption, more than half of the States had moved on their own to choose Senators through primaries or in conjunction with a general election.
While the Constitution does not explicitly define what might constitute a "vacancy," it has been longed recognized that either death or resignation of a Senator is considered a vacancy. The reason is obvious: There is a void in State representation in the Senate.
A Senator unable to represent his/her State because of long-term medical considerations does create a vacancy in the States representation just as there would be a void due to death or resignation. So, the vacancy is not so much in terms of the status of the Senator's health, but the status of the State seat being void of representation or not.
The only thing that matters in the case of Sen. Johnson is South Dakota law. Many States have long enacted statutes to aid in replacing a Senator for whatever reason. Take an early statute from the State of Connecticut for example:
Whenever any vacancy shall happen in them representation of this State, in the Senate of the United States, by the expiration of the term of service of a Senator, or by resignation, or otherwise, the General Assembly, if then in session, shall, by a concurrent vote of the Senate and House of Representatives, proceed to fill said vacancy by a new election; and in case such vacancy shall happen in the recess of the General Assembly, the Governor shall appoint some person to fill the same, until the next meeting of the General Assembly.
Every State should have contingency laws for dealing with vacancies to State representation in the United States Senate, for whatever reason, so representation is not interrupted for any prolonged period. Ideally there would be a law to temporary fill a vacancy caused by an incapacitated Senator if the duration of such incapacitation is determined by an attending physician to likely be more than, say, 90 days.
Once a physician declares the Senator fit to resume his duties he could then resume his seat, and if not able to resume, then his temporary replacement would serve until elections are held. Such contingencies are common with other offices, such as with Governors and U.S. Presidents.
Only thing that would be remarkable in filling Sen. Tim Johnson's seat, if it is medically determined he cannot return any time soon, is the balance of the Senate. This, however, is merely partisan rhetoric due to a tightly divided Senate and overlooks the real issue: The State of South Dakota having an equal voice in the U.S. Senate along with other States.
It is likely if Democrats held a far larger majority this would be a non-issue with a State moving to fill a void in its full representation in the United States Senate. There can be no justification for one party to put its partisan interests above the interests of a State in seeking to maintain its equal representation among other States in the Senate.
Any course of action will rest upon Mr. Johnson's medical condition as determined by his physicians, and if it is determined he will not be medically able to represent South Dakota through 2007, than South Dakota has every right, if it so chooses, to temporary fill the void till he can, or until the next election cycle determines who fills the seat.
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