Vice-presidential nominations

Sun Sep 7 09:25:21 PDT 2008

Alternatively, repeal the 12th amendment, but given each elector only ONE vote, and the person with the second most electoral votes becomes VP.  We would then always have "divided government" with the presiding officer of the Senate always being from the opposite party as the President.

Paul Finkelman
President William McKinley Distinguished Professor of Law
     and Public Policy
Albany Law School
80 New Scotland Avenue
Albany, New York   12208-3494

518-445-3386 
pfink at albanylaw.edu
>>> "Sanford Levinson" <SLevinson at law.utexas.edu> 09/07/08 12:15 PM >>>
What we need to do, I humbly (or not so humbly) suggest, assuming we
want to keep the office of the VP at all, is to delay naming a VP until
after the election, when the winner, following 25th-Amendment-like
procedures, would nominate a VP who would be confirmed by both houses of
Congress.  This would insure, one presumes, at least a minimally
qualified VP (unlike Gov. Palin).  Since that would take a
constitutional amendment, I would also suggest giving the President the
right to fire the VP if he/she loses the President's confidence and,
similarly, giving Congress, upon a 2/3 vote of both houses meeting
together, the power to fire a VP in whom there is no longer sufficient
confidence.  There may be something to be said for a fixed presidential
term (though I think there is even more to be said for allowing the
firing of presidents who lose the people's confidence); there is nothing
whatsoever to be said for similarly entrenching a VP who displays
disastrous misjudgment or, for that matter, signs of mental debilitation
that might give us pause.

John McCain's selection of the egregious Gov. Palin proves, beyond
reasonable doubt, that we simply cannot trust presidential candidates,
who are given dictator-like powers to choose the VP, to behave with what
the framers would have called "republican virtue."  (I realize,
incidentally, that my attribution of "dictator-like powers" to McCain
can be challenged inasmuch as his actual first choices, the far more
competent (or shall I simply say "competent" (in cnotrast to Gov. Palin)
Senator Lieberman or former Gov. Ridge, were passed over because of his
fear in facing a floor fight at the Convention.  That being said, I
still don't believe that anyone believes that John McCain seriously
considered whether she would be capable of taking over the presidency in
the foreseeable future should anything happen to the 72-year-old
melanoma survivor.)    I don't mean to pick only on the Republican
McCain.  Perhaps Al Gore chose Lieberman for VP in 2000 because he
genuinely thought he'd make a terrific president, but one suspects that
it was far more a deliberate decision to pander to Jewish voters in
Florida (which succeeded or not depending on your view of the
actualities of the Florida vote) and to moralists who would ostensibly
want to vent their (justified) anger at Bill Clinton by voting for a
prig.  We could also debate whether John Kerry's picking John Edwards
had anything to do with Kerry's view that Edwards was really ready to be
president.  The paradox of Dick Cheney, whose politics I loathe, is that
by any conventional criteria he was an excellent pick ex ante.  But we
really have an incredibly stupid, and possibly dangerous, way of picking
people who, historically, have a roughly 1/6 chance of succeeding to the
presidency (which are, roughly, the same odds that McCain would die in
his first term).   

sandy

________________________________

From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Robert Sheridan
Sent: Sunday, September 07, 2008 11:46 AM
To: Paul Finkelman
Cc: CONLAWPROF at lists.ucla.edu
Subject: Re: Vice-presidential nominations

Today, however, we in fact have the two major political parties embedded
in the democratic process, which, emphatically, is the concern of the
Constitution, see the one person, one vote doctrine, for example, and
the (late 'forties?) case which recognized the role of the Texas primary
as being that nomination was tantamount to election and thus required
equal protection of law, racially.    

We rely on the party system to "vet" our candidates to lead the country,
etc.  In an example of looking down the road a bit, it is now common for
partisans on both sides to urge recognition that the election of the
president influences the choice of Supreme Court justices when vacancies
occur, and that this can influence the direction of the country for a
long time to come, far longer, in fact, than the term of the president
who nominates.

It seems to me that the parties have the duty to vet, not just rubber
stamp, not only allegedly qualified candidates for president (the
vetting process of the primary elections being a large part of it), but
for VP as well.

As it is, little is said about who this person will be until the
presidential nominee is made quite clear, at which time the guessing
game becomes, "Who will s/he nominate as running mate?"  With Sen.
Obama, Sen. Hillary Clinton was a contender in the minds of some, or
many.  He selected another senator, Joseph Biden of Delaware, who has
had considerable experience in Washington as head of the Senate
Judiciary and Foreign Affairs Committees.  Obama chose a well-vetted, it
seems, running mate.  No complaint with the party process on the
qualifications score there, other than that Obama was entitled to run
for two years without saying who his backup was likely to be.

Shouldn't there be a mechanism that puts the interest of the country in
being well-led in the event of a catastrophe befalling the president
ahead of the candidate's interest in appealing to the voters of this
state or section or that, or of this faction or that, in order to get
elected in the first place?  The attitude seems to be that, well, let's
take care of getting elected first and let the future take care of
itself.  This looks like a disaster-waiting-to-happen loophole in the
wall of democracy.  I suppose that some people may have regarded FDR's
choice of HST in 1944 as something like a disaster at the time.  Other
allegedly qualifications-challenged names come to mind but I'll refrain
from mentioning them.

In terms of political theory, we seem to take it for granted that the
candidate for president has the right to select the most advantageous
running-mate, in terms of electability of the main candidate, w/o regard
to qualifications to lead the country otherwise.  In fact the main
candidate takes pains NOT to nominate as running mate someone who might
be seen as a more qualified leader than himself.  What this does for the
rest of us is anybody's guess.

I don't think this is apt to change, as in a race for presidential
power, winning is the only thing that counts.  I'm just saying that
temporary expediency in getting elected can have long term effects that
are hard to imagine in advance and not necessarily good.

If we really cared, we'd urge the candidate earlier on to name his
running mate.  This is not a question I recall being put to candidates
in primaries or in televised forums.  The candidate, however, has a
vested interest in maintaining a constructive ambiguity on future
nominations as to both VP and the Court, so it is unlikely that the
question would receive a real answer in advance of the need to jump off
the bridge.

I think we're stuck.

rs
sfls

On Sep 7, 2008, at 7:13 AM, Paul Finkelman wrote:

	I think it is worth remembering that 
	1) the Framers did not anticipate political parties
	2) they expected the VP to be the runner up for the presidency
and thus not the ally of the president, but the person he ran against.
This happened only once (Adams and Jefferson).  We also got a few VPs
who were not running for president on a ticket (Calhoun for example who
served under two different presidents)l.

	But, the Framers did not anticipate the VP being necessarily an
ally of the president

	Paul Finkelman
	President William McKinley Distinguished Professor of Law
	    and Public Policy
	Albany Law School
	80 New Scotland Avenue
	Albany, New York   12208-3494

	518-445-3386 
	pfink at albanylaw.edu

				Janet Alexander <jca at stanford.edu>
09/06/08 10:10 AM >>>

	I's the "constitutional role" of the VP so clear?  Ed Purcell
notes, 
	"During the nation's first decade many of the founders
considered the 
	[VP] office . . . as part of the legislative, not the executive,

	branch.  John Adams, the nation's first vice president,
regularly 
	presided over the Senate, helped shape its agenda, participated
in 
	debates, lobbied for votes, and ruled on key procedural 
	issues.  Jefferson, who followed Adams in the office, shared his

	predecessor's view.  'I consider my office as constitutionally 
	confined to legislative functions,' he declared, and accordingly
'I 
	could not take any part whatever in executive consultations.'" 
	Purcell, Originalism, Federalism, and the American
Constitutional 
	Enterprise 43-44 (2007).

	At 08:49 PM 9/6/2008, davidebernstein at aol.com wrote:

		What I find (constitutionally) troubling is that the
Vice-president has

		taken on all sorts of roles that the Constitution does
not provide for.

		 Cheney isn't the first, but it's perhaps unique that
he's basically

		run his own foreign policy operation.  Cabinet
secretaries and their

		top people must all get confirmed before they can
exercise executive

		authority.  The VP has been elected, but almost no one
votes based on

		the v.p.  It would be nice to restrict the v.p. to his
constitutional

		role of president of the Senate and
president-in-waiting.  (Or, if the

		president wants the v.p. to be the equivalent of a
cabinet member,

		appoint him to the cabinet, so he can be confirmed by
the Senate.  Is

		there any reason the V.P. also can't be, say, defense
secretary?)

		-----Original Message-----

		From: Paul Finkelman <pfink at albanylaw.edu>

		To: CONLAWPROF at lists.ucla.edu; rs at robertsheridan.com

		Sent: Sat, 6 Sep 2008 11:37 pm

		Subject: Re: Vice-presidential nominations

		Constitutionally speaking, there is NO vetting process
required and it

		has not always been there.  Franklin Pierce, James K.
Polk were "dark

		horses" with no vetting; Zach Taylor who won, and
WInfield Scott who

		lost, were generals with no political experience and
people knew little

		about them; same, in some ways for Eisenhower.  The "two
years" of

		vetting is remarkably new.  McGovern appeared almost
over night; no one

		really knew who Jimmy Carter was until he showed up in
Iowa, less than

		a year before he ran.  Lincoln was not an "unknown"
quantity in 1860

		but he was hardly the best know or vetted person; even
when nominated

		some newspapers were unsure of his first name; James
Buchanan was

		nominated because he had been in England for 3 years and
when he

		returned in 1856 to seek the nomination his best asset
was that he had

		not done anything in domestic politics for 3 years;
Wendell Willkie

		was a Democrat until 1939 and had never held elected
office (or indeed

		any office); he !

		was the dark horse.

		So, there is no constitutional requirement that
candidates be vetted

		and many have not been, with mixed results.

		I would love to see the VP vetted, or even the parties
regularly choose

		their runner-up for VP; but none of this is
constitutional and so

		"constitutionally speaking" this is all irrelevant. Age,
citizenship,

		and residency; that is all that "constitutionally
speaking" matters for

		who runs for president.  Everything else is politics.

		Paul Finkelman

		Paul Finkelman

		President William McKinley Distinguished Professor of
Law

		    and Public Policy

		Albany Law School

		80 New Scotland Avenue

		Albany, New York   12208-3494

		518-445-3386

		pfink at albanylaw.edu

				Robert Sheridan <rs at robertsheridan.com>
09/06/08 11:17 PM >>>

		It strikes me as odd, constitutionally speaking, that to
be elected

		president one must go through a vetting process that
takes at least

		two years in order to win the nomination of one of the
two major

		parties, followed by another two months of intense
electioneering

		before the plebiscite on the first Tuesday in November,
only to have

		the vice-presidential candidate chosen last-minute at
the party

		convention followed by the same two months of following
the leader.

		Since it has, unfortunately, been too often the case
that the VP has

		succeeded to the presidency, not by election, which
gives him, and

		potentially her, a built in weakness, see, e.g. Gerald
Ford who

		succeeded RMN following the resignation, unless and
until elected in

		his, or her, own right, see, e.g. HST, LBJ, then why do
we require,

		not to say suffer, such intensity for the presidency and
so little

		intensity for the Vice-presidency.

		Perhaps the irony is not so much constitutional as such,
as much as it

		is in democratic theory, which I presume has something
to do with the

		Constitution.

		Just a thought, inspired by the nomination of a little
known governor

		from Alaska by the GOP nominee, Sen. John McCain, as his
running

		mate.  Let's say she's terrific.  Why weren't we alerted
to her as a

		potential candidate two years ago?  Because then she was
not a

		governor but only the mayor of a small suburban town
near Anchorage?

		If you want McCain, you have to accept that his
running-mate may well

		have to lead the country during one of his potential
terms.

		If two months is good enough to vet her, I suppose that
opens the door

		for many others whose domestic (nationally),
international, and

		military experience is as great, or little.

		She does meet the minimum age (35) and natural born in
the U.S.

		qualifications (about which there's been a question
regarding the

		senator, born in the Great State of the Panama Canal
Zone), however,

		those being the prime qualifications in the founding
document.

		Lincoln was from the sticks, but had been in public life
for decades

		before taking on Douglas, whom he debated up and down
Illinois, to

		national attention, on the great issue of the day,
slavery.  He'd been

		vetted nationally for ample time, longer than 60 days,
before his

		election.  The nation lucked out with Lincoln.

		What over-riding national issues are the two competing
candidates, and

		their running mates, addressing?

		America's proper role and place in the world?  The
proper use of force?

		rs

		sfls

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