03/21/2010 05:12 am ET Updated May 25, 2011

Senator Kirk, Please Resign

The following is an open letter to Sen. Kirk (D-Mass.).

Sen. Paul Kirk,

If you want to continue to honor the legacy of Sen. Ted Kennedy, you would resign your seat immediately after the special election to determine his predecessor. Sen. Kennedy served with distinction and had a career of long and effective service.

Massachusetts law says that an appointed senator remains in office "until election and qualification of the person duly elected to fill the vacancy."

Article I, Section 5, of the US Constitution says the Senate is "the judge of the elections, returns and qualifications of its own members."

Senate custom and rules dictate that "[p]revailing practice is for state governors to fill Senate vacancies by appointment, with the appointee serving until a special election has been held, at which time the appointment expires immediately," according to a Congressional Research Service report.

This view is explained more fully by Michael Stern here.

A legal analysis prepared for the subcommittee [of the Senate Judiciary Committee] found that "in view of [Seventeenth Amendment's] purpose of providing for representation in the Senate by persons elected by popular vote both for full terms and for unexpired terms it seems reasonable to assume that no temporary appointment was to be authorized except for the intervening period between the creation of a vacancy and the day when the people by their votes actually elect a successor, or, in other words, until they elect a person to fill the vacancy."

There is more discussion at the VC here where it explains

"Senators elected in special elections have been paid their Senate salaries as if their position started on the day after the election, not the day of their eventual certification."

Starting Wednesday January 20th, the salaries for the office staffers are paid from the budget of the new senator-elect. Your time will have passed.

The worst way to tarnish the legacy of Sen. Kennedy would be to disrespect the institution he loved and served with distinction.

Bradley Jansen