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UPDATE: Kagan confirmed, time to ratchet up speculation about Chris Gregoire as solicitor general

Post by Peter Callaghan / The News Tribune on Aug. 6, 2010 at 3:35 pm | 12 Comments »
August 6, 2010 4:32 pm

Yes, the history making confirmation has occurred and we should take a moment to absorb the significance of the fourth-ever female Supreme Court justice.

Ok, that’s enough.

But what if the springtime reports are true, that Washington Gov. Chris Gregoire is a possible replacement for Elena Kagan as U.S. solicitor general? That would trigger a sequence of events that would make for some interesting political news over the next few months.

UPDATE ONE: Gregoire told the Seattle Times Friday she will take the weekend to decide whether to ask the White House to drop her name from consideration, presuming she is still being considered.

First of all, the magic date is October 3. If Gregoire were to resign as governor before that day, the state would be plunged into a winner-take-all general election. That means no primary to whittle down the list of candidates to two.

Such a happening would be an expensive, dirty, perilous and tremendously entertaining free-for-all with the control of state government going to whichever candidate gets a plurality.

After October 3, Lt Gov. Brad Owen would take over and keep the job all the way until the 2012 election. Owen is a Democrat but one with more-conservative beliefs and voting patterns than Gregoire. Since it would likely take more than two months for President Obama to make an appointment and for the U.S. Senate to confirm that appointment, it is unlikely a vacancy would occur before Oct. 3.

A quirk in state law puts off the governor’s race until 2012 but requires a special election to replace Owen in 2011. That could set up a practice election with candidates hoping to run in 2012 getting a leg up with a year as lieutenant governor. Ok, probably not.

UPDATE TWO: Secretary of State’s office isn’t completely sure when the race to replace Owen as lieutenant governor would take place. Should he succeed Gregoire as governor, a 1902 Supreme Court case says he wouldn’t be replaced and would serve as both governor and lieutenant governor. The only limitation on his dual duties would be he would no longer preside over the Senate. The case is State v. McBride.

State v. McBride 29 Wash. 335, 339-340, 70 P. 25, 26 (1902)

“When the lieutenant governor, by virtue of his office and of the command of the constitution, assumed the duties of governor on the death of Gov. Rogers, the office of lieutenant governor did not thereby become vacant, but the officer remained lieutenant governor, intrusted with the powers and duties of governor. People v. Budd, 114 Cal. 168, 45 Pac. 1060, 34 L. R. A. 46; State v. Sadler, 23 Nev. 356, 47 Pac. 450; People v. Hopkins, 55 N. Y. 74; Robertson v. State, 109 Ind. 79, 10 N. E. 582, 643. It is argued, however, that since it is made the duty of the lieutenant governor, under the constitution, to be presiding officer of the state senate (section 16, art. 3), and as such to approve all bills passed by that body, he must, as governor, review and approve or reject bills which as lieutenant governor he has already approved. These duties are, no doubt, inconsistent; but this argument, we think, is fully met by another provision of the constitution, which provides, at section 10, art. 2, in substance, that when the lieutenant governor shall act as governor the senate shall choose a temporary president. The lieutenant governor, therefore, when the duties of governor devolve upon him, is relieved of the duties of presiding officer of the senate.”

Now, back to the speculation at hand …

When asked in May about the possible appointment, Gregoire was coy, saying she had a job and had work to do in Washington state..

But she hesitated when asked if she could tell the president no if he called on her to serve as U.S. Solicitor General.

“It’s one thing to say I have a job. But you don’t look the president in the eye when he asks you to serve and say no,” she said. “I don’t know what I’d do.”

“The state needs consistent, stable leadership,” Gregoire said. She also said that “at this time I feel continuity of leadership is vital.”

But she said she has spoken to U.S. Interior Secretary Ken Salazar about his decision to leave the U.S. Senate. At first he said no. But when the president called him aside and asked him directly, Salazar said he felt obligated to say yes.

Why not send signals to the White House that she doesn’t want the president to put her in that situation. In other words, please don’t ask?

“That’s what happened with Ken Salazar,” she said.

So her statement Friday that she could solve this dilemma by calling the White House and opting out might not work since it appears Salazar tried that without success. He still got the summons and he still had to accept.

The solicitor general represents the federal government in cases before the Supreme Court and is sometimes referred to as the 10th justice because of her frequency of appearances in the chambers.

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