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With the balance of power in the Senate riding on the health of Sen. Tim Johnson (D-S.D.), conservative columnists and Republican strategists are gaming scenarios in which Johnson could be replaced by one of their own. But finding an exit strategy for an ailing senator is harder than it looks. Any Senate historian will tell you that the Upper Chamber has never replaced a senator for any reason except resignation or death. Even if Senate Republicans tried to remove Johnson, who underwent surgery on Dec. 14 after suffering a brain hemorrhage, they wouldn’t have much of a legal or procedural leg to stand on. Still, this isn’t the first time that the health of a member of Congress has become a national issue. After Sen. Paul Coverdell (R-Ga.) suffered a cerebral hemorrhage in 2000, J. Randolph Evans, a partner at McKenna Long & Aldridge and general counsel of the Georgia Republican Party, led a team of lawyers who actually developed possible scenarios for how to replace Coverdell if he did not completely recover. (At the time, Senate Republicans held the majority by 10 seats.) “We knew that we had a pretty partisan Democratic governor, and we knew this was something we needed to look at,” says Evans. “The ramifications could [have] taken on political overtones. We asked, �Are there clear rules, are there clear boundaries, or is [replacing Coverdell] going to fall into discretionary judgment?’ “ The authority to remove a senator falls upon the Senate, which can use the 17th Amendment to define a severe level of impairment as death. But Evans also concluded that a governor could make a declaration based on medical evidence and appoint a new senator. The Senate would still have to decide, however, whether to certify the governor’s appointment. “Constitutionally, the Senate is the sole judge of the qualifications of its members,” says Evans. “There is no way for the states to force the Senate, but they can put pressure on them.” All that lawyering was for naught in Coverdell’s case: Three days after Coverdell became ill, he died. then-Georgia Gov. Roy Barnes (D) appointed Coverdell’s replacement, former Georgia Gov. Zell Miller, a Democrat who later backed Republicans.
Anna Palmer can be contacted at [email protected].

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