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The question of who Gov. Paterson will pick to fill Hillary Clinton’s senate seat has, over the last two weeks or so, become progressively harder to answer.

Two weeks ago yesterday, Marc Ambinder at The Atlantic all but said it would be Caroline Kennedy, citing her support from New York’s other Senator, Chuck Schumer, and the Senate Majority Leader Harry Reid. Next some prominent Clintonites voiced opposition to the idea, citing Kennedy’s lack of experience, whilst quietly promoting the cause of Andrew Cuomo, NY’s Attorney General (and a former member of President Clinton’s cabinet). Then came the New York Post’s story about Kennedy’s poor voting turnout record, and all started to get a bit bumpy.

Now, it seems, much of the mainstream New York press has got cold feet. These New York Times interviewers seemed irritated by her (and her by them). The New York Daily News has been fairly brutal (here and here in particular). Polls show the public unsure, divided.

There are twists left in this one yet, I think.

My thought is this: Paterson should pick neither Kennedy nor Cuomo, nor any of the other ‘big names’ in New York political circles who are angling for the job. Not because of who they are or what they believe, but because there is a better solution.

There are two problems to be dealt with here. The first is the obvious legitimacy problem. It is the job of a Senator to represent the people of his or her state. A Senator not elected by the people is not the legitimate representative of those people. The inevitable upshot: democratic election is preferable to appointment.

There is also a practical problem. Under New York election law, whoever is picked would have to be defend the seat in 2010 and again in 2012 (when Clinton’s term in the Senate was due to expire). This means that if the appointee is intending to run again in 2010, they would have to spend the next twenty months fundraising, contesting a primary campaign, and then contesting a general election. In other words, for twenty months they’d be a bad Senator; their time spent electioneering, not representing. And then, were the appointee to win in 2010 and wanted to hold the seat beyond 2012, the process would begin again. More fundraising, more campaigning. For the first four years of his or her tenure in the Senate, a Paterson appointee would not spend his or her time representing New York, but fighting elections.

What should happen: Paterson should do as some have suggested, and make an interim pick. H

e should choose someone who will not run for election to retain the seat, and let the people of New York decide who will be their Senator in 2010. The arrangement would be known publicly. Similar things have been done before, notably in 1960 when Benjamin Smith was chosen to take JFK’s seat in Massachusetts, acting as a ‘seat warmer’ until Ted Kennedy was old enough to run himself.

If Paterson were to make an interim choice, he or she would serve as the senator for two years unencumbered by the need or desire to win election in 2010. Meanwhile, Kennedy (et al) could run for the seat legitimately and democratically. And whoever won that election in 2010 would have a full six-year term before re-election, allowing them to give the people of New York the representation they deserve.

Democratically this solution is right; practically-speaking it is sensible. Likely it will not happen – Paterson will seek to use the pick to shore up some part of his political base. He himself wants to run for re-election to the office he took over upon the resignation of Eliot Spitzer, and he’ll need all the help he can get. The poll bounce he’d get from a headline-grabbing, popular pick would be just the ticket.


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