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FindLaw |Legal Commentary
The Sarah Palin Selection: Why McCain's Inexperienced Running Mate Falls
Short of
Meeting the Implicit Constitutional
Qualifications For Vice Presidents
By JOHN W. DEAN
Friday, Sept. 05, 2008
In truth, the Vice President of the United States is important for only one
reason: He or she will become President of the United States upon the death,
incapacity or resignation of the President. Nine times in our history, vice
presidents have succeeded to the presidency: John Tyler (1841), Millard
Fillmore (1850), Andrew Johnson (1865), Chester A. Arthur (1881), Theodore
Roosevelt (1901), Calvin Coolidge (1923), Harry Truman (1945), Lyndon
Johnson (1963), and Gerald Ford (1974). Of course, the vice president also
has a significant secondary role: It is he or she, acting with a majority of
the Cabinet, who can declare the president incapable of carrying out the
duties of the office, and then take charge - until the action is either
ratified or rejected by a majority of the Congress. So far in our history,
however, this has never occurred.
Given the fact that the 2008 GOP standard-bearer John McCain is seventy-two
years of age, his selection of an inexperienced Vice Presidential running
mate, Alaska Governor Sarah Palin, has again focused attention on the
process and procedures for selecting vice presidents - or, to put it more
bluntly, the utter lack of process or procedures in selecting the person who
is a heartbeat away from the presidency. McCain, not unlike others before
him, selected a less than fully vetted running mate for political reasons.
That is surely a concern for voters to think over in the upcoming election -
but it raises a systemic concern, too, for the long run.
Consider this parallel: Does anyone believe that if John McCain were
president and had selected Governor Sarah Palin under the Twenty-fifty
Amendment to fill a vacancy in the vice presidency, Congress would have
confirmed her? Not likely. In fact, it is even less likely that McCain would
have even attempted to do so, for he would have embarrassed himself.
While the Constitution does not expressly set forth qualifications for the
vice-presidency, it strongly implies them --- and Palin falls short.
How Our Constitutional Process for Selecting Vice Presidents Evolved
Our founders gave little thought to the vice presidential selection process.
Initially, the candidate who placed second in Electoral College votes became
vice president. While this worked for the first three presidential
elections, the election of 1800 produced a tie in the Electoral College,
between Thomas Jefferson and Aaron Burr (both of the same party), and
although Burr was the announced candidate for vice president, when he came
up with a tie vote, he refused to step aside, forcing the resolution of the
contest in the House of Representatives, which proved to be a messy affair.
This clear flaw in the system was corrected by the Twelfth Amendment, which
requires electors to vote separately for president and vice president. It
was the Twelfth Amendment (adopted in 1804), along with the growth of
political parties, that encouraged the pairing of candidates in the
presidential election. Since then, the vice presidential selection process
has evolved from party leaders' making the selection to the current system,
under which the party's presidential nominee is given the power to select a
vice presidential running mate.
The Twenty-fifth Amendment (adopted in 1967) indirectly codified the power
of a candidate for president to select his vice president, for the Amendment
states that when there is a vacancy in the office of the Vice President,
"the President shall nominate a Vice President who shall take office upon
confirmation by a majority vote of both Houses of Congress." A Vice
President, like a President, must be a natural born citizen, at least
thirty-five years of age, and a resident of the United States for fourteen
years.
Of course, Sarah Palin, McCain's running mate, meets the minimum
constitutional requirements. But there also exists a clear subtext within
the Constitution, and related statutes, that suggests that there are other,
implicit qualifications for the Vice President, as well - qualifications as
to which Governor Palin falls short. While this subtext is plainly not
formally binding on either a presidential candidate or president, candidates
and presidents have traditionally followed the implicit qualifications
suggested by the Constitution.
The Twenty-fifth Amendment Suggests the Primary Qualifications for Vice
Presidents: Be Equipped to Serve as President Starting, if Necessary, on Day
One
I served as minority counsel to the House Judiciary Committee when the
Committee was working on the Twenty-fifty Amendment. Accordingly, I recall
well the difficult debates and discussions on how vacancies in the vice
presidency should be filled. The procedures under discussion ranged from a
special national election for the vice president, to a convening of the
Electoral College to make the decision, to the selection of a vice president
by the Congress.
The process that was actually settled on, as I mentioned earlier, codified
the procedure that had evolved over the years, through which the candidate
selected his running mate. In line with that procedure, presidents were
similarly given the power to fill vacancies in the office of the vice
president. But there was a crucial difference: Under the Twenty-fifth
Amendment, presidents can only fill that office with the approval of a
majority vote of both the House and Senate. Confirmation thus entails not
only ratification by the public, but also scrutiny by political pros who
assure Americans that the new vice president is up to the task of taking
charge.
Twice, the Twenty-fifty Amendment has been employed to fill a vacancy in the
vice presidency. Nixon appointed Gerald Ford to fill the office when Vice
President Spiro Agnew resigned (under threat of indictment). Then, after
Nixon resigned, and Ford succeeded to the presidency, Ford used it to
appoint Nelson Rockefeller his Vice President.
Both Nixon and Ford explained their decisions, and the criteria at the top
of their lists. Nixon wrote in RN: Memoirs of Richard Nixon that from "the
outset of the search for a new Vice President I had established four
criteria for the man I would select: qualification to be President;
ideological affinity; loyalty and confirmability." (Emphasis added.) Nixon's
first choice was his Secretary of Treasury John Connally, who was dropped
because he would have confirmation problems. (Connally was, in fact, later
indicted but acquitted.) New York Governor Nelson Rockefeller and California
Governor Ronald Reagan were taken off Nixon's list because the selection of
either one over the other would have split the Republican Party. Finally,
also on the list was Jerry Ford, the Minority Leader of the House, on whom
Nixon settled.
Ford explained in A Time To Heal: The Autobiography of Gerald R. Ford that
he had given considerable thought to filling the vice presidency when he
became president, and his staff developed a ranking system. "There was one
overriding criterion," he wrote to explain his baseline: "[H]e had to be a
man fully qualified to step into my shoes should something happen to me."
Ford's top aides eliminated George H. W. Bush, who had served in the House
of Representatives and headed the Republican National Committee, "as not yet
ready to handle the rough challenges of the Oval Office." And when Ford
settled on one of the wealthiest men in America, Nelson Rockefeller, it
resulted in protracted confirmation hearings because of the extent of
Rockefeller's holdings (which might have raised conflicts of interest). But
in the end, Rockefeller was confirmed.
Congress Has Also Suggested Vice Presidential Qualifications Indirectly In
the Succession Statutes It Has Passed
The Twenty-fifth Amendment only covers succession to the presidency or vice
presidency when one of these offices is vacant - not both. It is silent if
there are vacancies in both of the offices of the President and Vice
President. The scenario of concurrent vacancies has, however, been addressed
by Congress, most recently in a 1947 law.
The line of succession to the presidency begins with the Speaker of the
House of Representatives (currently, Nancy Pelosi of California). Next is
the President pro tempore of the Senate (currently, Robert Byrd of West
Virginia). Finally, if neither of these officers is willing or able to take
the post, the succession law turns to the President's Cabinet members.
The current order of succession is Secretary of State (currently,
Condoleezza Rice), Secretary of the Treasury (Henry Paulson), Secretary of
Defense (Robert Gates), Attorney General (Michael Mukasey), Secretary of the
Interior (Dirk Kempthorne ), Secretary of Agriculture (Edward Schafer),
Secretary of Commerce (Carlos Gutierrez, who was born in Cuba, and thus not
"natural born"), Secretary of Labor (Elaine Chao, who was born in Taiwan,
and thus not "natural born"), Secretary of Health and Human Services (Mike
Leavitt), Secretary of Housing and Urban Development (Steven Preston),
Secretary of Transportation (Mary Peters), Secretary of Energy (Samuel
Bodman), Secretary of Education (Margaret Spellings), Secretary of Veterans
Affairs (James Peake) and Secretary of Homeland Security (Michael Chertoff).
Under the succession statute, the presidency is filled for the remainder of
the president's term.
Although this 1947 succession statute has been appropriately criticized,
Congress has been reluctant to change it. The Congressional consensus has
been that if there is a dual vacancy in the Executive branch's elected
officials, it should be temporarily filled by a seasoned elected official
from the Legislative Branch. In practice, while the full line of succession
has been stipulated, it is unlikely that we will ever need to go beyond the
Speaker of the House to fill the vacancy temporarily.
If neither the Speaker nor the President pro tempore is up to the task of
serving, Congress has been comfortable with the caliber of appointees
serving as Secretaries of State, Treasury, or Defense to serve as temporary
president - for no one believes (absent a dramatic situation such as a
massive attack on the seat of government that would call into force
continuity-of-government plans) that the succession process would ever
proceed beyond the "big three" Cabinet posts.
Governor Sarah Palin Does Not Qualify Under the Implicit Constitutional
Standards
When Nixon selected Ford to be his Vice President, and Ford selected
Rockefeller, the government was divided, with the Democrats controlling
Congress. Yet a Democratic Congress approved both Ford and Rockefeller to be
Vice President based on inter-branch comity. Surely no one would argue that
Sarah Palin is in a league with Ford and Rockefeller when it comes to
experience.
Nor does Palin possess anything close to the experience qualifications of
the Speaker of the House, Nancy Pelosi, or the President pro tempore of the
Senate, Robert Byrd. Indeed, I feel confident that Palin could not get
confirmed for any of the top presidential succession posts, namely the posts
of Secretary of State, Treasury and Defense. Palin's lack of qualifications
have been widely noted. Newspapers from her state have raised questions of
her qualifications.
Recently, I was in Alaska, just after Palin's name was first floated as a
possible McCain running mate. Although I am not a Democrat, I gave a keynote
speech at the Democrats' state convention. During my visit, a senior
Democratic Party official said to me that he sure hoped McCain would select
Palin, because based on his observation of her record Alaska, he opined
that, : "She's screwing up Alaska big time, and she could probably assure
defeat for McCain." His wish may be coming true.
------------------------------------------------------------------------
John W. Dean, a FindLaw columnist, is a former counsel to the president.
Copyright © 2008 FindLaw, a Thomson Reuters business. All rights
reserved.Webby Awards Time 50 coolest websites
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