There is no rule – federal law or constitutional authority – to determine whether a senator or congressman is “incapacitated” and unable to serve. In Rep. Gabby Giffords' case, she determined after basically a year away that she prefers to focus on her recovery and she resigned Wednesday.
Sen. Mark Kirk (Ill.-R) likely will be given plenty of time to recover from the stroke he suffered over the weekend. And history shows that a hiatus isn't necessarily a career-changer.
In 2007 Sen. Tim Johnson of South Dakota suffered a stroke and took nearly nine months off. He even won re-election after returning. Ted Kennedy suffered a brain tumor and was out for months, and Joe Biden had two brain aneurysms and was away for eight months in 1988. Seven years ago Sen. Harry Reid suffered a mild stroke and was able to use the summer recess to rest.
None of the senators or congressmen who fell ill was at risk of losing their jobs even though they couldn’t get to their offices or perform their duties. While representative staffers continue to answer constituent requests, the one thing they cannot do is vote for a member.
It is far too early to know how much time Sen. Kirk will be away, but tradition shows one year may well be the benchmark before there are questions about a resignation.
And Kirk's doctor said in a statement released Wednesday the senator is "progressing as expected."
"We continue to be hopeful about his long term prognosis," said Dr. Richard Fessler of Northwestern Memorial Hospital in a statement. "He remains in serious condition and is being monitored closely.”