Nevada Confidential

    Let’s take all the speculation related to whether or not Sen. John Ensign will resign to the next logical step: what happens if he does?

    Procedures governing vacancies in the Senate were initially established by Article I, Section 3 of the U.S. Constitution, later amended by paragraph 2 of the 17th Amendment. It says: “When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided that the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.” with no restrictions on who the Governor can appoint other than that person be “qualified.” The appointee serves until the next regularly scheduled general election – which would be 2010 – when there would be an election to serve the two remaining years of Ensign’s term. This election would be held simultaneous with the race for the seat now held by Harry Reid. There would be election for a full six-year term in 2012.

    Could our troubled Governor appoint himself? Kind of – but not exactly. Here we would look to the precedent of 1945 when U.S. Sen. James Scrugham died.

    At the time, Edward P. Carville from Elko was our eighteenth Governor.  He was a Notre Dame Law School grad who had been elected district attorney and district judge of Elko County, and had served as the U.S. Attorney for Nevada from 1934 to 1938. Carville was elected governor as a Democrat in November 1938. He was reelected in 1942.

    When Sen. Scrugham died in office in July, 1945, Carville resigned as Governor. This enabled then-Lieutenant Governor and Acting Governor Vail Pittman to appoint Carville to the Senate vacancy.

    Carville served fewer than two years because when he ran for the office in the next regularly scheduled election (1946), his virtual self-appointment to the Senate became a major issue and he was defeated in the Democrat primary 55% to 45% by Berkeley Bunker. Bunker had, himself, served briefly in the U.S. Senate having been appointed to fill the vacancy caused by the death of Sen. Key Pittman (Vail’s brother) just a few days after Pittman had been reelected in 1940. (It has been rumored for years that Pittman actually had died before his final election, and that Democratic Party leaders kept his body on ice in a hotel bathtub until he was re-elected – but that is another story)

    Even though Bunker was highly respected – he had been Speaker of the Assembly and was celebrated as the first Southern Nevadan and first Nevada Mormon to hold national office – the bitter primary with Carville caused such a split that Bunker was defeated in the general election by Republican George Malone, a civil engineer who had twice before run for the U.S. Senate – losing by large margins (33% to 67% against Key Pittman in ’34 and 41% to 59% against Pat McCarran in 1944.

    The take-away from this history lesson to Gov. Gibbons is that it almost certainly would not be a rational strategy for him to resign and let indicted Lt. Gov Brian Krolicki appoint him to the Senate. But, then again, when has Gibbons ever been accused of having a rational strategy?