Ted Kennedy died before his wish for a change to Massachusetts law could come to fruition, which would empower the Governor to appoint Kennedy's immediate successor. This has sown some confusion over whether the legislature might still change the law, or whether the seat will stay vacant until a special election is held.

As the law now stands, the seat would have to remain vacant for the next 145-160 days -- thus busting the Democrats down to 59 Senate seats -- until a special election can be held. The Democrats would be heavily favored to win that special Senate election.

However, there appears to be at least a theoretical possibility that the seat could be filled sooner than that. In the final weeks of his life, Kennedy had called for the law to be changed to allow Gov. Deval Patrick (D) to make an interim appointment, selecting a caretaker who would represent the state and pledge not to run in the election.

The irony here is that the law in Massachusetts used to be that the Governor would appoint a Senator who would occupy the seat until the next regular Congressional election -- as occurred when John F. Kennedy was elected president, a caretaker was appointed, and then Ted Kennedy won the seat in 1962. Democrats used their veto-proof legislative majorities to pass the new law in 2004, when John Kerry was running for President and Republican Mitt Romney was the Governor at the time.

Now in 2009 -- with the health care debate in the balance this Fall -- that law appears to carry with it a serious unintended consequence.

In a radio interview this morning, Gov. Patrick said he was still open to changing the law to provide for an interim appointment, saying he would sign the bill if it reached his desk: "Massachusetts needs two voices."

In addition, former state Dem chairman Phil Johnston has now floated the idea of appointing former Gov. Michael Dukakis, the 1988 Democratic nominee for President, to serve as the caretaker Senator.

TPM has called the offices of the state legislative leaders, asking about the possibility of this actually occurring, but no answer has yet been released.

Appointing a caretaker would have obvious advantage for Democrats. This person would be a uniform vote for the Dem agenda in Washington, and the selection of a neutral elder statesman, combined with the expedited special election schedule, would enable the local politicians to continue to fight out their intra-party battle at the same time as the state has full representation. The downside is the appearance of partisanship -- just as it was a power grab to change the law against Mitt Romney in 2004, it would be a power grab to modify it now.

The names circulating in the press as potential candidates amount to a list of the top political names in the state: State Attorney General Martha Coakley, Rep. Stephen Lynch, Rep. Michael Capuano, Rep. Edward Markey, Rep. James McGovern, Rep. William Delahunt, and former Rep. Marty Meehan, who now serves as chancellor of the University of Massachusetts at Lowell.

Late Update: The Boston Herald reports that legislative leaders are now discussing ways to amend the law, and that an appointment bill could be scheduled for a hearing in September.