Paterson is a hero for breaking the Senate gridlock

The hero of the breaking of the Senate stalemate turns out to be the governor, David Paterson. It is much more than a coincidence that at the point he named Richard Ravitch lieutenant governor, the disgraceful log jam broke. My bet is that this was the hit in the head with the two-by-four that finally showed the stubborn senatorial mules how low their reputation had fallen. Paterson proved himself to be a creative problem solver. While he has been loath to claim personal credit, the buzz around is that he is the big winner. Even his critics at the right wing tabloid press had to award him winner’s status.

Naturally, the denizens of the Senate deep don’t like the idea that the creative governor used this power to appoint for the very first time. Rather than going to a Supreme Court judge in Albany which is, after all, the seat of state government and the logical place anybody would ordinarily go, they ran out to Mineola, Long Island to find a judge who they thought might be more likely to do their bidding. It seems to be business as usual with the Republicans and their sometimes pet, Pedro Espada, bringing this action and politicizing the judiciary in the same way they have politicized the entire political process. Don’t they get it? The people are fed up with their self-serving game playing.

Of course, they had ample opportunity to pass an amendment to the state Constitution, based on the 25th Amendment to the United States Constitution, which would allow the governor to nominate a lieutenant governor with the consent of the Legislature. Why didn’t they do it? One good guess would be that the leaders in the Senate knew that one of their own would accede to the governor’s job if they did it. At one point, when it looked like Senator Pedro Espada would be president pro tem of the Senate, Espada might have actually become governor should anything have happened to Paterson. Talk about the wolves guarding the hen house!

The brilliant counsel to the governor, Kathleen Sullivan, who is arguing the case for the governor, makes a very compelling series of arguments. She argues that the governor has had the power to do this all along. It’s just that no one has ever done it before. She points to Public Officers Law 43 saying, “That statute, passed by the Legislature, says that the Governor has authority, when there’s a vacancy in an elective office, to fill that vacancy.” She goes on to tell us that there is no other law to the contrary. She makes it very plain that it was the Legislature that passed the law. She belittles the arguments advanced by Sens. Espada and Skelos citing the constitutional provision that the Senate president shall “perform the duties” of the lieutenant governor. Yes, she says, that is until the governor appoints a lieutenant governor.

It sounds to me like she has a point. It is doubtful the judge on Long Island will have the final say. This one will surely go to the state’s highest court, the Court of Appeals. Then we will see whether those judges have the same kind of spirit as Earl Warren and John Marshall before him had when they were the chief justices and kept finding powers in the Constitution that people hadn’t found before. In Marshall’s case, the whole power of “judicial review” was never a part of the Constitution but it has been with us ever since. I have always admired most of the people on the New York high court. They are smart people and they know what’s at stake. I’ll bet that they side with governor.

 In the meantime, the crisis is over and the “chaos” that was predicted to ensue if the governor appointed a lieutenant governor has not materialized. As far as Dick Ravitch is concerned, he’ll wait it out. The worst thing that could happen would be for David Paterson’s car to be hit by the chicken truck. Then there would be quite a fight over who would be the state’s next governor. Ravitch may not be Mr. Charisma but he is a real old hand at government and can do the job. There are very few in the state Senate right now who I would want to see sitting on the second floor of the Capitol.

Originally Published in the Legislative Gazette, 7/16/09

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