Evan Bayh was a two-term governor of Indiana. (For what it's worth, I think Richardson is probably the leading candidate; he's a governor, he's a Latino, he's quite popular in his western swing state, he has some serious foreign policy experience, and my wife says that he can really deliver a speech.)

News out in CD-10 - Doggett's old district. Ron Paul (R/Libertarian) has endorsed John Devine. There's a recorded message from Paul on the front page of the Devine site that I bet is being blasted across the district right now. Bad news because Paul was popular in this district, having represented most of it as recently as 2002. Devine must be registering as having a legitimate shot at a runoff for this recording to have been made - Ten Commandments and all.

Steve - True, but since he's a current Senator, I think referring to him as "Gov. Evan Bayh" is inaccurate. Still, point taken.

Don - There goes any respect I ever had for Ron Paul.

Well I don't really know much about it but my guess is the last sentence of the Twelfth Amendment applies to this situation:

"But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States."

Obviously when the twelfth amendment was passed they were thinking of infirmaties such as age and natural born citizenship, but I see no reason it would not extend to the prohibition under the 22nd amendment

There is a discussion of this at the Volokh conspiracy also:

http://volokh.com/2004_02_29_volokh_archive.html#107833460411712131

While there is a difference betwee eligible and elected I don't buy that there is a substantive distinction

He's not constitutionally ineligible to the office, though -- he's just ineligible to be ELECTED to the office.

Clearly, the spirit of the 22nd Amendment is that a President gets his two elected terms, and that's the end of it. That's how I would interpret it. But it doesn't really say that exactly, now does it?

So how might we find out, since there's no case law? Well, we'd have to make new case law. How? By a legal challenge. How might that happen? If the Dems just put Clinton on as the #2 man and moved forward with the election. The GOP could challenge, I suppose, but how quickly might the case move? I mean, there is an election to be had. Would the courts REALLY overturn the chosen nominee of a party on a matter that's ambiguous at best? I have my doubts.

I know, the partisans here would like to say "But there's the Florida precedent." But there, they didn't overturn results -- they just disallowed certain procedures. There's a difference. I can't imagine federal courts telling one of the two major political parties that its duly chosen vice-presidential nominee is ineligible, especially given the time contraints.

I think it's all just fun speculation, though, because Bill Clinton doesn't play #2 for anyone (and why should he?). He certainly won't for a stuffed shirt like John Kerry.

I initially wrote Kerry off for the same reasons that you did. His Iowa comeback showed me that he has some dedicated, determined, and savvy people running his campaign In addition, Kerry is no babe in the woods and has seen every form of attack by now. He had a ringside seat as Mass. Lt. Gov during the reaming of Dukakis and knows what these guys care capable of.

I agree with Antimone and Prof. Volokh; I think Prof. Gillers, while an extremely bright and articulate lawyer and scholar, is on the wrong side of this one. Gillers' parsing of the constitutional language isn't completely hare-brained, but it's flyspecking and loopholing.

It's an intriguing hypothetical mostly because of wishful thinking. Kerry continues to improve as a campaigner, but he's still a wannabe; Bill Clinton remains the standard for the "real deal" for much of his party.

Even without giving any credit to the conspiracy theories about how Hill & Bill have manipulated the Dems' 2004 primaries to set up Hill's coronation in 2008, I still take very seriously the notion that she will be a serious candidate then, and hence that neither she nor her sometimes-wayward husband will do anything that might get in the way of that projected campaign. Constitutional impediments aside, I therefore can't take seriously the notion of Bill Clinton as a 2004 Veep candidate. I also believe that new elder statesman Bill will be eager to blaze new paths as "First Spouse," and Hillary's hoped-for success in 2008 would burnish his own blemished legacy.

Finally, short of outright panicky grasping and desperation — none of which I see yet in the Kerry campaign — I can't imagine nominee-presumptive Kerry picking any Veep nominee who would so obviously overshadow himself. My money's still on Bill Richardson.

While others have discussed the conflict between the 12th's "eligible to the office of President" and the 22nd's "elected to the office of President", I'll merely point out that interpreting the 22nd as Professor Gillers et al. would do would completely nullify it, in the sense that an X/Clinton ticket could be elected, X could immediately resign--even saying so during the campiagn--and bang, Clinton is President again, and this could be repeated endlessly.

Since this is exactly the result the 22nd was passed to prevent, it obviously cannot be interpreted to permit it.

The last sentence of the 12th's Amendment's prohibition that no person ineligible to be president shall be Vice President withoubt a shadow of doubt would be used to prevent a former two term president from running as Vice President. Firstly,the plain language says so and second, the Courts would never allow what can't be done directly ( to be elected for more then two terms) to be done indirectly. I really believe it's a no brainer and this regardless of what Professor Gillers' faulty legal reasoning says.