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Recent health concerns for U.S. senators, like for Kentucky's Mitch McConnell, have brought attention to how old the Senate is. The median age is 65, which is a record high. And with an aging Congress comes the possibility of vacancies. Louisville Public Media's Sylvia Goodman reports on Kentucky's unique appointment system, should a need arise.
SYLVIA GOODMAN, BYLINE: The annual Fancy Farm church picnic is a quintessential Kentucky political tradition. And according to organizers, Senator Mitch McConnell has not missed the event since he started coming, assuming the Senate wasn't still in session. But before McConnell took the stage recently, many in the audience did not know if he would even be there.
KRISTEN WILCOX: I'm not a personal supporter of Mitch McConnell, but I have been concerned for his health and well-being. So I think it would be a good sign if he does make an appearance.
GOODMAN: Kristen Wilcox, who says she's politically independent, is referring to recent health concerns for the influential senator. Last month, McConnell abruptly froze mid-sentence for about 30 seconds during a news conference. That's after a hospitalization in March for a concussion and minor rib fracture. But McConnell did show up and face the raucous crowd of thousands of Kentuckians.
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MITCH MCCONNELL: For those of you who keep count, this is my 28th Fancy Farm.
GOODMAN: And just that morning, McConnell assured Republicans that, quote, "it's not my last." Republican Daniel Ripley, who attended the picnic, said he was glad to see the 81-year-old senator there. But McConnell's health issues have made him consider things like term limits more seriously.
DANIEL RIPLEY: He looked a little feeble up there on stage (laughter). Mitch McConnell's been in there a long time. He done a lot of good things. But still, I think they should have term limits just like the president.
GOODMAN: For most of Kentucky's history, the governor simply appointed someone in the case of a vacancy in the Senate. That's happened seven times. But in March of 2021, the state's legislature, backed by McConnell, put in place a new system - one that's quite rare in the U.S. Now the party of the vacating senator gets to furnish the governor with a list of three options, and the governor may then pick someone off of that list.
TRES WATSON: Voters deserve to have someone who has similar viewpoints to them appointed rather than allowing a Democratic governor to appoint a Democrat to the seat who doesn't reflect those views at all.
GOODMAN: That's Tres Watson, a Republican political consultant and former Kentucky GOP communications director. He says Republicans in the state don't see Kentucky's Democratic governor, Andy Beshear, as willing to compromise.
WATSON: Andy Beshear has not necessarily worked very well with this legislature. And so I think there was some concern there that there wouldn't be that sort of collaboration.
GOODMAN: Only seven states have adopted this system. According to Vikram Amar, a constitutional law professor at UC Davis, the 17th Amendment of the U.S. Constitution was created expressly to remove senatorial appointment power from state legislatures.
VIKRAM AMAR: If there's one thing that's clear about the 17th Amendment, it's - the reason we didn't like indirect election by the state legislature is because we thought the legislatures were too influenced by partisan bosses.
GOODMAN: Amar says these limitations on a governor's appointment power haven't been challenged in court yet. Anna White, an attorney who used to work for the Kentucky Democratic Party, says she believes it's simply a method of watering down the governor's power. White says she expects that if McConnell were to vacate his seat, Beshear would likely bring the law before the courts.
ANNA WHITE: So I would advise the governor, step up. Challenge it immediately as soon as you are asked that question rather than simply taking the list of three, picking one and then bickering over who that should be.
GOODMAN: McConnell has said he has no intention of leaving his term, which ends in January 2027, early. Without a vacancy, the governor likely won't be able to challenge the constitutionality of the Kentucky state law.
For NPR News, I'm Sylvia Goodman in Louisville, Ky.
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