March 03, 2004
Let the VP sweepstakes begin!

Well, barring anything truly wacky, John Kerry will be carrying the Democratic banner this fall. Kerry was not my first choice, but that was based as much on my perception of his early campaign missteps as anything. As with any candidate, there are things he's done that I disagree with, but I consider him to be a solid, worthy, and eminently fine person for the job. I plan on planting a Kerry/Whoever sign in my yard as soon as he announces who that whoever is.

The main down side here is that, as expected, next week's primary will be meaningless from the perspective of my having a say in who the nominee is.

"Certainly if Edwards withdraws before the Texas primary, we won't have a role ... but we will have a role in building momentum and enthusiasm as we move to November," said Gerry Birnberg, Harris County Democratic Party Chairman. "All I'm interested in is getting a strong candidate who will be capable of beating Bush next November, and it looks to me like we've done that."

I'll second that. To be honest, had the issue been in question, I'm still not sure how I'd resolve the Kerry/Edwards dilemma. If Edwards hasn't dropped out by the time I push the eSlate button, I may just flip a coin. All that aside, let's not forget that there's more to next week's primary than just this race:

[Harris County GOP Chairman Jared] Woodfill and Birnberg emphasized that Texas voters still will consider significant congressional, state and local elections.

For once, I agree with Jared Woodfill. I'm still pondering the Gallegos/Navarro Flores race.

But let's put all that aside for now and get on with the important task of making wild-assed guesses about who will play Riker to Kerry's Picard (or Spock to his Kirk, if you prefer). Let's start off by acknowledging the obvious: Everything that's been said by either Kerry or Edwards up to this point about a Kerry/Edwards ticket is meaningless. Either Kerry thinks Edwards is the best person to help him get to 271 electoral votes, or he doesn't. Denials about VP possibilities by candidates who are still competing are as bankable as Monopoly money.

An interesting suggestion for how to decide on a VP comes via On Background:

[If] Kerry is as smart as he has proven to be so far in this campaign, he won't play the old game of picking a running mate who might--emphasis on "might"--help him carry a particular battleground state. Rather, he will follow the lead of Carter in 1976 and Bill Clinton in 1992 and pick a vice presidential prospect who helps to energize the party's base voters nationally, and who adds ideas and energy to a ticket that will be needing more of both those commodities.

Among the people mentioned there are Texas' own Rep. Lloyd Doggett. I think this is unlikely in the extreme, as after March 9 Doggett will either be the loser of a primary race or locked in a battle with a well-connected and funded Republican opponent in a district the Democrats cannot concede, but I do agree with the overall nature of the advice. I would add that Kerry's VP ought to be someone who provides a good contrast both to himself (i.e., be a charismatic speaker, and not be from the Northeast) and to Big Time Dick Cheney (simply not being evil would be a good start here).

One of the advantages of having a seasoned veteran (in all senses of the word) on top of the ticket means that the Democrats can reach out to a younger, less experienced but more exciting choice for #2. That could include first-term governors like Bill Richardson or Janet Napolitano, as well as less obvious candidates like Doggett. I've said it before and I'll say it again - I'd love to see someone who would be a clearly strong candidate to run the next time.

That reason alone is enough for me to reject this idea.

With John Kerry's success in Tuesday's primaries, the race for the Democratic nomination for president is all but over -- and speculation about his choice for vice president can now begin in earnest.

John Edwards, Kerry's closest rival [and who is expected to officially withdraw from the race today], is a proven campaigner and could attract Southern voters. Govs. Evan Bayh of Indiana and Bill Richardson of New Mexico have both regional appeal and executive experience. Dark-horse candidates include former Treasury Secretary Robert Rubin and former Sen. Sam Nunn of Georgia.

Amid this conjecture, however, one name is conspicuously absent: Bill Clinton.

Last I checked Evan Bayh was a Senator, but that's not important right now. I know what you're thinking: "Bill Clinton isn't eligible anyway!"

The first objection, the constitutional one, can be disposed of easily. The Constitution does not prevent Clinton from running for vice president. The 22nd Amendment, which became effective in 1951, begins: "No person shall be elected to the office of the president more than twice."

No problem. Bill Clinton would be running for vice president, not president. Scholars and judges can debate how loosely constitutional language should be interpreted, but one need not be a strict constructionist to find this language clear beyond dispute. Bill Clinton cannot be elected president, but nothing stops him from being elected vice president.

True, if Clinton were vice president he would be in line for the presidency. But Clinton would succeed Kerry not by election, which the amendment forbids, but through Article II, Section 1 of the Constitution, which provides that if a president dies, resigns or is removed from office, his powers "shall devolve on the vice president." The 22nd Amendment would not prevent this succession.

I'm not equipped to address that point - I daresay case law is lacking. Any lawyers want to take a crack at it? Beldar? Antinome? Anyone?

UPDATE: The best line of the campaign season so far goes to Rob Humenik:

Not seen this weekend on a Volvo S40 driven by a sullen, Birkenstock-wearing, Latte swiller...

"Widowed by Dean, Flirted with Edwards, Slowly Coming to Accept the Crushing Reality of an Arranged Marriage to Kerry."


UPDATE: Yglesias and Volokh weigh in on the Clinton-as-VP question, with no clear answer. I'm hearing that Kerry already has a very short list of possibilities, and the big dog ain't on it. But what the heck, if you can't have fun with vice presidential woolgathering, when can you have fun?

Posted by Charles Kuffner on March 03, 2004 to The making of the President | TrackBack

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.)

Posted by: Steve on March 3, 2004 1:54 PM

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.

Posted by: Don on March 3, 2004 2:02 PM

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.

Posted by: Charles Kuffner on March 3, 2004 2:12 PM

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

Posted by: Antinome on March 3, 2004 2:19 PM

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

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

Posted by: Antinome on March 3, 2004 4:33 PM

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.

Posted by: kevin whited on March 3, 2004 4:35 PM

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.

Posted by: Brenda Helverson on March 3, 2004 5:42 PM

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.

Posted by: Beldar on March 3, 2004 11:04 PM

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.

Posted by: Greg Morrow on March 5, 2004 2:14 PM

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.

Posted by: James Bransten on July 25, 2004 5:06 PM