Should Rep. Gabrielle Giffords Keep Her Seat?

By most accounts, Democratic Arizona Rep. Gabrielle Giffords is making a remarkable recovery from a gunshot wound to the head sustained during deranged shooter Jared Loughner’s attack on January 8. In her latest bit of progress, Giffords reportedly was able to stand up from her bed and is expected to move to a rehabilitation center as early as this week.

And while her condition is still considered very serious and a setback could come at any time, some news outlets have already begun asking the sensitive question of what should become of Giffords’ House seat.

With a long and arduous road to recovery likely facing her, the conservative blog Frum Forum’s John S. Wilson asked, “There is no doubt her constituents mourn for her and her family. But does that mean they should also go without representation in Congress? Certainly not.”

He pointed to Arizona state law, which holds that if an office holder is unable to “discharge the duties of office for the period of three consecutive months, the office shall be deemed vacant and at such time, a special election could be called to fill the opening.”

But, as The Washington Post pointed out, the law does not apply to Giffords’ situation or to members of Congress. The U.S. Constitution is responsible for laying out the qualifications for service in Congress and the House is the sole judge of those qualification.

“Legally, it’s not a close call,” political law expert Brian Svoboda told the paper. “You have a history of interpreting these constitutional decisions and the courts have consistently struck down state laws that have tried to impose additional qualifications beyond those that are set forth in the Constitution.”

If she stays on, Giffords would not be the first incapacitated member of Congress to stay on despite a grave injury or illness. Slate magazine ran down the long history of other members of Congress who’ve stayed in their roles despite being unavailable for votes. The sole exception is when Rep. Gladys Spellman of Maryland suffered a heart attack and slipped into a coma in 1980 the day before Election Day. She won re-election, but after a few months doctors said she was unlikely to recover and her family agreed to vacate her seat.

Using the Spellman case as an example, less than two weeks after Giffords’ attempted assassination Wilson asked, “Is this how it should be? Should constituents allow members to hold onto their seats like political Brett Favres with no concept of when it is time to go?”

He suggested that Congress should take up the issue of Giffords’ seat immediately and in consultation with her family and Republican Arizona Gov. Jan Brewer come to an “appropriate remedy.”