WY-Sen: Could Freudenthal Buck the State GOP?

The Hotline picks up on an article written by FindLaw’s Vikram David Amar exploring the constitutionality of a state legislature’s ability to constrain the Governor’s choices for a U.S. Senate vacancy, such as in Wyoming, where Democratic Gov. Dave Freudenthal must select one of three options presented to him by the state Republican Party in the wake of Republican Sen. Craig Thomas’ recent passing:

He notes that the U.S. Constitution only says that state legislatures may “empower” govs to make SEN appointments. This raises the question whether 1). A legislature can force a governor to appoint a senator if a governor choses to leave a SEN vacancy, and 2). Whether the legislature, once it’s empowered the governor to make an appointment, can give itself or a state party any ability to shape that appointment.

Amar notes that the phrase “”as the legislature may direct”, which appears elsewhere in the Constitution, does NOT appear in the relevant SEN appointment section, which might lead one to conclude that a legislature may only give its governor no power or total power regarding a SEN appointment.

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But let’s say Freudenthal doesn’t want to feel obligated to pick one of the WY GOP’s 3 nominees? As Amar points out, he simply could appoint a Dem or GOPer of his own choice, at which point the U.S. Senate (the “Judge of the … Qualifications of its own members”) would have to determine if it accepts the new member or not. Of course, a SCOTUS case could also easily ensue from such a move.

As a Dem in such a deep-red state such as WY, one wonders if Freudenthal would really pursue such an “in-your-face” move as simply trying to appoint his own selection, on the assumption he wants to preserve good relations with the GOP legislature and his own political viability. Ultimately, there’s a good chance he’ll simply appoint one of the 3 GOP nominees presented him. And yet, one wonders if it’s not out of the question that he might attempt to dangle the threat of a peremptory appointment as a bargaining chip. Perhaps he would send word to the GOP central cmte regarding which candidates he would prefer or dislike, hinting that he might force the constitutional question if they fail to comply?

Perhaps he might insist on a compromise whereby he appoints a GOPer if the legislature agrees to pass a special election bill that would elect a new senator in November 2007 (when a Dem might have a better chance of winning, with no presidential coattails to worry about)? Who knows?

Of course, the major caveat is that we’re talking about Dave Freudenthal here, a guy who is probably the least partisan Democratic Governor in the country.  Who could forget his 11th hour support of Gary Trauner, even as he cruised to an easy re-election?  Or his dismissal of Howard Dean and the national party as ‘too liberal’ and ‘out of touch’?

It’s pretty hard to imagine Freudenthal playing hardball with the state GOP.  But, who knows?  He’s term-limited, and perhaps if the choices presented to him are that bad, maybe his passions will be stirred into provoking a constitutional battle?

UPDATE: Rollicking DailyKos discussion here.

Race Tracker: WY-Sen