Updated August 17, 2023 at 1:50 PM ET
LOUISVILLE, Ky. — The annual Fancy Farm church picnic is a quintessential Kentucky political tradition, but as people began flocking to the picnic grounds in the western part of the state earlier this month, many didn't know if Senate Minority Leader Mitch McConnell would be making an appearance.
"I'm not a personal supporter of Mitch McConnell, but I have been concerned for his health and wellbeing," said Kristen Wilcox, a politically independent Fancy Farm attendee and president of Kentucky Moms For Medical Cannabis. "So I think it would be a good sign if he does make an appearance."
Wilcox was referring to recent health concerns for the influential GOP senator. At the end of July, McConnell abruptly froze mid-sentence for about 30 seconds during a Capitol Hill news conference. He also spent five days in the hospital in March for a concussion and minor rib fracture after a bad fall.
But McConnell did show up and face the raucous Fancy Farm crowd. The event is well-known for heckling, cheering and general commotion from the audience. McConnell spoke for a couple minutes to both applause and jeers.
"Elaine and I are really excited to be back at Fancy Farm on behalf of the strongest Republican team we've ever run in our state. For those of you who keep count, this is my 28th Fancy Farm," McConnell said.
Earlier the same day, at a breakfast for local Republicans, McConnell assured that group, "It's not my last."
Daniel Ripley, a Republican 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.
"He looked a little feeble up there on stage. Mitch McConnell has been in there a long time and he's done a lot of good things. Still, I think they should have term limits just like the president," Ripley said.
The median age of U.S. senators is 65 years old, a record high, and several health concerns within the Senate have brought questions over term limits, vacancies and party balance to the forefront. That growing awareness of an aging Congress has led some Kentuckians to consider what happens if a vacancy opens for the state's Senate seats.
How vacancies are filled in Kentucky
For most of Kentucky history, the governor simply appointed someone until the next election. The 17th Amendment of the Constitution set up the direct election of senators by the electorate. It also said state legislatures may empower their governors to appoint one in the case of a vacancy. That's what happens in most states and it's happened seven times in Kentucky's history.
But in March 2021, the state's legislature, backed by McConnell, put in place a new system. The party of the vacating senator furnishes the governor with a list of three options. And the governor may then pick someone off of that list.
Tres Watson, a Republican political consultant and former Kentucky state GOP communications director, said the system is designed so the incoming senator has similar views as the departing one.
"Voters deserve to have someone who has similar viewpoints to them appointed, rather than, you know, allowing a Democratic governor to appoint a Democrat to the seat who doesn't reflect those views at all," he said.
Watson said Republicans in the state were spooked by Kentucky Democratic Gov. Andy Beshear, who has often been at odds with the state's overwhelmingly Republican statehouse on issues like abortion and transgender rights. Some Republicans, Watson said, perceive Beshear as unwilling to compromise with the state's legislators.
"Voters of Kentucky overwhelmingly chose Mitch McConnell in that seat," Watson said, referring to McConnell's nearly 20-percentage-point win over Amy McGrath in 2020. "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."
Only six states have adopted this system besides Kentucky: Hawaii, Maryland, Montana, North Carolina, West Virginia and Wyoming. And even among those states, only one governor has been required by the law to select a senator of the opposite party — when Democratic Wyoming Gov. Dave Freudenthal selected Republican Sen. John Barrasso from a list of three in 2007.
Vikram Amar — a distinguished professor of law at the University of California, Davis, who specializes in constitutional issues — said this type of limitation on a governor's appointment power hasn't been challenged in court yet.
According to Amar, the 17th Amendment was created expressly to remove senatorial appointment power from state legislatures.
"The reason we didn't like indirect election by the state legislature is because we thought the legislatures were too influenced by partisan bosses," Amar explained.
Anna White, an attorney who used to work for the Kentucky Democratic Party, said she believes it's simply a method of watering down the governor's duties and consolidating power for one party. White said she is concerned with the idea of giving unelected party officers more control over elected positions.
"Why would we want an interim process where a purely partisan person occupies that very important position, representing everyone in the state, not just one political party?" she asked rhetorically.
White said she expects that if McConnell were to vacate his seat, Beshear — who's running for reelection — would challenge the law. He could also flout it directly and make his own appointment to the seat, welcoming a challenge from state Republicans and Republicans in Washington.
"I would advise the governor to step up, challenge it immediately," White said. "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."
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 bring the law before the courts.
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