Balkinization   |
Balkinization
Balkinization Symposiums: A Continuing List                                                                E-mail: Jack Balkin: jackbalkin at yahoo.com Bruce Ackerman bruce.ackerman at yale.edu Ian Ayres ian.ayres at yale.edu Corey Brettschneider corey_brettschneider at brown.edu Mary Dudziak mary.l.dudziak at emory.edu Joey Fishkin joey.fishkin at gmail.com Heather Gerken heather.gerken at yale.edu Abbe Gluck abbe.gluck at yale.edu Mark Graber mgraber at law.umaryland.edu Stephen Griffin sgriffin at tulane.edu Jonathan Hafetz jonathan.hafetz at shu.edu Jeremy Kessler jkessler at law.columbia.edu Andrew Koppelman akoppelman at law.northwestern.edu Marty Lederman msl46 at law.georgetown.edu Sanford Levinson slevinson at law.utexas.edu David Luban david.luban at gmail.com Gerard Magliocca gmaglioc at iupui.edu Jason Mazzone mazzonej at illinois.edu Linda McClain lmcclain at bu.edu John Mikhail mikhail at law.georgetown.edu Frank Pasquale pasquale.frank at gmail.com Nate Persily npersily at gmail.com Michael Stokes Paulsen michaelstokespaulsen at gmail.com Deborah Pearlstein dpearlst at yu.edu Rick Pildes rick.pildes at nyu.edu David Pozen dpozen at law.columbia.edu Richard Primus raprimus at umich.edu K. Sabeel Rahmansabeel.rahman at brooklaw.edu Alice Ristroph alice.ristroph at shu.edu Neil Siegel siegel at law.duke.edu David Super david.super at law.georgetown.edu Brian Tamanaha btamanaha at wulaw.wustl.edu Nelson Tebbe nelson.tebbe at brooklaw.edu Mark Tushnet mtushnet at law.harvard.edu Adam Winkler winkler at ucla.edu Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts Perhaps I can make McCain an ally
|
Wednesday, February 06, 2008
Perhaps I can make McCain an ally
Sandy Levinson
Last July, I published a piece in the Boston Globe, entitled "No Vice," arguing that we would be better off either without a Vice President at all--we got along without one for 45 of our first 180 years)--or, perhaps more plausibly, waiting until after the election and having the winner, a la the 25th Amendment, nominate a vice president, subject to congressional confirmation. I would, incidentally, also allow the President or Congress to fire the Vice President, but that's another matter for another thread.
Comments:
If last night is any indication, McCain desperately needs a VP candidate who can help bring in the votes of the rural Southern conservatives who voted for Huckabee without actually tapping Hucakbee, which would only further alienate the economic conservatives.
Maybe Hillary can take you up on your idea since Bill would be her defacto VP anyway...
Why would Mitt Romney be an "obvious choice" if one is concerned about appealing to Huckabee's constituency, who want a "real Christian" and certainly not a member of an arguably non-Christian sect (according to Richard John Neuhaus in First Things several years ago). Perhaps McCain could persuade Clarence Thomas to step down from the Court!
EL:
The other candidates reportedly loathe Romney for being an arrogant rich guy. It is doubtful that he will be tapped as VP even if he could bring in the Southern rural voters.
He'll probably nominate someone like a Bill Frist or John Thune. Huckabee's an affable guy, but as you point out, a risky nominee. I think McCain would love to nominate Giuliani but that would only further alienate the base.
As for your article, I didn't quite get the argument for eliminating the Vice Presidency, other than the fact that you (and admittedly most Americans) don't like Cheney. In your amended version of the Constitution, who would succeed the President in case of death? I don't think it would be advisable to go straight to the Speaker of the House, who's the next person on the list as it stands today. The virtue of having a Vice President is that the people give their consent to the person who would replace the President should he die or become incapacitated. The Speaker, or any other officeholder who attains their office by party caucus or appointment or seniority (like the President Pro Tempore of the Senate or the Secretary of State), isn't chosen by the people to succeed the President. Pelosi was elected by a few Californians, and the people chose the Democrats nationwide to run the House, but they did not choose Pelosi to be the Speaker. Her caucus did. (Moreover, imagine her predecessors, Hastert and Gingrich, succeeding to the Presidency.) I think there'd be something undemocratic about someone who the whole nation didn't elect succeeding the President, and that's why we have a nationally elected Vice President. Now, you can argue that we don't choose the Vice President, that the President, in effect, chooses him, and therefore that he's not so different from a Cabinet member. But, unlike Cabinet members, we know who the proposed Vice President will be in advance of the election, and we may base our vote, if we choose, on whether we think he's fit to be President. You can also argue that we have had unelected Vice Presidents, one of which even became President. But actually, didn't the fact of Ford's appointment and the resulting speculations about the pardon deal undermine his legitimacy? In any event, we need to provide for presidential succession somehow, and nationally electing the successor is the means most in harmony with our overriding constitutional principles.
The other candidates reportedly loathe Romney for being an arrogant rich guy.
Not to mention that he is a serial liar. I see no way that McCain selects him as the VP.
enlightened layperson said...
Bart, So who do you recommend? Haley Barbour, Governor of Mississippi and former RNC Chair. Barbour is pure deep fried Southern conservative with feet in both the GOP establishment and the rural South. Moreover, Barbour's superb recovery work in Miss. after Katrina is the perfect antidote for the Dem smear of the GOP for Dem state and local ineptitude in LA. Even though the subject did not explicitly come up, Barbour seemed open to the the idea of VP for McCain in an interview with Fox News last night during the returns. Jeb Bush could assure Florida. However, folks are tired of the Bushes and the Clintons. McCain cannot very well exploit that fatigue against Hillary if he has a Bush on the ticket.
Barbour's an ex-professional lobbyist. It wouldn't look good and I doubt McCain would pick him. Condi's an interesting idea in my opinion. If he goes with her, that would help cancel out the first woman/black in the White House sentiment.
What ever happened to the Tommy Thompsons (or Vilsaks) of the political world? Why are no Republicans that sought the nomination this year able to appeal (even in theory) to a large segment of the party, without straining the base over selective issues (McCain on immigration, campaign finance), or lacking credibility as a "true conservative" (Romney), or appealing only to the social conservatives but not economic conservatives (Huckabee).
Why did not a mainstream Republican run? Is it because the party has moved far enough to the right that there no longer is a mainstream within the party (i.e. the ideological space of the party covers more ground than it used to)? Or is it just a lack of fortune? I find it hard to believe there is a lack of willing candidates.
Does anyone seriously believe that John McCain (or any other presidential candidate) should be expected to believe that his or her choice is fully equipped to take on the duties of US president. And can any serious person believe that Sen. Thune, Bill Frist, or Hayley Barbour meets that test? Or consider that one name supposedly on Hillary's list is Ohio's Gov. Tim Strickland, a former (or for all I know, present) minister who is apparently very popular in Ohio and who might well provide Ohio in the Dems column. Could Hillary, running as the candidate of "experience" and disdainful of Obama's lack of same, possibly tell us, with a straight face, that Strickland qualifies. Could anyone have made that argument with regard to Bill Miller, Spiro Agnew, Geraldine Ferraro, Dan Quayle, or for that matter, John Edwards in 2004. Dick Cheney obviously was superbly well qualified, by resume; it's simply that he's turned out to have abysmal judgment and to be an authoritarian to boot, which is why I favor being able to fire VPs.
It is a sheer formality to say that Americans "elect" the VP, since there is no known evidence that the electorate actually scrutinizes the VP and ask whether they'd want him/her as president. But if one thinks that election is important, then let the president-elect nominate a VP and submit the choice to a popular referendum, which would presumably limit the incentives to pander to a particular geographical constituency.
tray:
Barbour was an extremely telegenic and persuasive spokesman for the GOP for years. He is a minor hero down in Mississippi for his superb response to Katrina. I do not think that working as a lobbyist for a time will be a problem. Barbour has all of Huckabee's down home charm without the associated tax and spend baggage.
sandy levinson said...
Does anyone seriously believe that John McCain (or any other presidential candidate) should be expected to believe that his or her choice is fully equipped to take on the duties of US president. And can any serious person believe that Sen. Thune, Bill Frist, or Hayley Barbour meets that test None of the front runners for President have any executive experience, unless one thinks that former First Ladies gain executive experience by osmosis. Hell, the two Dem front runners only have very limited Congressional experience with no notable legislation. Haley Barbour has more successful executive experience under crisis conditions than any of them. Consequently, I do not see how inexperience is a problem limited to the vice presidency. I agree with you that the voters are far more concerned with who is running for President than they are about his or her running mate. However, the voters do not seem to be too concerned about experience in their Presidents.
Well, I can't say I see how Thune or Frist are any less qualified than Clinton or Obama - unless purely by virtue of being Republicans. You are right to say that it's only true that Americans elect their Vice Presidents in a purely formalist sense. However, I still think that Vice Presidents are better qualified for succession than the other options. Speakers of the House tend to either be extremely partisan politicians or undistinguished lifelong Congressmen. Presidents pro tempore of the Senate are usually very old (see Strom Thurmond, Robert Byrd). Cabinet members are usually specialists in their various fields. Vice Presidents, on the other hand, are usually some of the more capable governors or senators in their respective parties. You can cite all the John Nance Garners and Quayles and Agnews you want, but they're the exception, not the rule. Take Gore, G.H.W. Bush, and Cheney - all three were at least as qualified and intelligent as the Presidents under whom they served. If you go back a little further, you could look at Johnson, Nixon, and Truman. Yes, Vice Presidents are chosen to balance tickets, but they're also picked with some concern for ability. That's because presidential nominees genuinely care about picking a good successor; it's also because if they pick someone who's blatantly unqualified or repugnant to half the electorate, it could hurt their chances of election. Moreover, if you eliminate the VP, it doesn't solve the problem you have with VP's - really powerful people in the White House whom we can't fire if they go astray. If Bush didn't have Cheney as his Vice President, he'd retain him or someone like him as an unofficial adviser, in which role he wouldn't even be impeachable. Were we able to "fire" Karl Rove? In all respect, I don't think this is one of your best ideas.
The point is that not even the President can fire the Vice President, which is absurd.
The last Vice Presidential candidate that may have had any impact on a national election was Walter Mondale in 1976. "Ticket balancing" may be helpful for party unity and is certainly part of our political lore, but it's pretty questionable nowadays -- Clinton and Bush II dispensed with it altogether (I'm still not sure how Cheney managed to prove he was from Wyoming when he most assuredly was domiciled in Texas), John Edwards couldn't even carry his home state, and the less said about Dan Quayle the better (although everyone remembers well how Lloyd Bentsen nailed Quayle in their debate, it is less well remembered that Bentsen likewise did not carry his home state, as Bush I got 56% of the Texas vote). It makes no sense for the Speaker to succeed to the presidency (an absurdity much noted after Spiro Agnew's resignation and prior to Gerry Ford's "election" as VP). It would make perfect sense for the senior Cabinet member meeting the Constitutional qualification test for the presidency to be first in the "line of succession". The framers just messed this one up, even if it's taken Dick Cheney and his lawyers to make it clear just how dangerous the Vice Presidency is, having a foothold in both the executive and legislative branches and thereby violating the separation of powers.
Well, my personal choice, since he was in fact my personal choice for president, is Fred Thompson. I don't travel in Southern conservative circles, but from what I understand he'd be acceptable in those circles -- but at the same time, reasonably non-threatening outside those circles.
Of course, I suspect that most people here aren't really interested in a nominee that would help McCain get elected, but that's my $0.02 anyway.
Professor Levinson:
Suppose your amendment providing for the apointment of a VP upon election, to be ratified by both houses of congress, were already on the books this year. How does this actually help McCain out of his dilemma? GOP voters are still going to be very interested in McCain's VP choice, especially given his age, and it would seem very likely that he'd have to publicly announce who his VP choice would be before election day. One would expect the very same factors as now exist to be in play with that choice as now exist for picking an official running mate. So if you assume that McCain has to pick Huckabee to balance the ticket, don't you also assume he has to declare Huckabee as his VP nominee? At that point the only thing protecting us from Huckabee a heartbeat away from the presidency would be (1) McCain reneging, which would be very politically costly, (2) firing Huckabee, which would cause a firestorm unless some event intervened, (3) opposition from the Democratic congress. Of those, only (3) seems plausible, and it is not at al clear that the Democrats would be interested in helping the president finagle out of his promise. They might relish the prospect of an opposition president that might disgrace the Republican party.
thanks so much i like very so much your post
Post a Comment
حلي الاوريو الفطر الهندي صور تورتة حلى قهوه طريقة عمل السينابون طريقة عمل بلح الشام بيتزا هت كيكة الزبادي حلا سهل صور كيك عجينة العشر دقائق طريقة عمل الدونات طريقة عمل البان كيك طريقة عمل الكنافة طريقة عمل البسبوسة طريقة عمل الكيك طريقة عمل عجينة البيتزا فوائد القرفه
|
Books by Balkinization Bloggers Linda C. McClain and Aziza Ahmed, The Routledge Companion to Gender and COVID-19 (Routledge, 2024) David Pozen, The Constitution of the War on Drugs (Oxford University Press, 2024) Jack M. Balkin, Memory and Authority: The Uses of History in Constitutional Interpretation (Yale University Press, 2024) Mark A. Graber, Punish Treason, Reward Loyalty: The Forgotten Goals of Constitutional Reform after the Civil War (University of Kansas Press, 2023) Jack M. Balkin, What Roe v. Wade Should Have Said: The Nation's Top Legal Experts Rewrite America's Most Controversial Decision - Revised Edition (NYU Press, 2023) Andrew Koppelman, Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed (St. Martin’s Press, 2022) Gerard N. Magliocca, Washington's Heir: The Life of Justice Bushrod Washington (Oxford University Press, 2022) Joseph Fishkin and William E. Forbath, The Anti-Oligarchy Constitution: Reconstructing the Economic Foundations of American Democracy (Harvard University Press, 2022) Mark Tushnet and Bojan Bugaric, Power to the People: Constitutionalism in the Age of Populism (Oxford University Press 2021). Mark Philip Bradley and Mary L. Dudziak, eds., Making the Forever War: Marilyn B. Young on the Culture and Politics of American Militarism Culture and Politics in the Cold War and Beyond (University of Massachusetts Press, 2021). Jack M. Balkin, What Obergefell v. Hodges Should Have Said: The Nation's Top Legal Experts Rewrite America's Same-Sex Marriage Decision (Yale University Press, 2020) Frank Pasquale, New Laws of Robotics: Defending Human Expertise in the Age of AI (Belknap Press, 2020) Jack M. Balkin, The Cycles of Constitutional Time (Oxford University Press, 2020) Mark Tushnet, Taking Back the Constitution: Activist Judges and the Next Age of American Law (Yale University Press 2020). Andrew Koppelman, Gay Rights vs. Religious Liberty?: The Unnecessary Conflict (Oxford University Press, 2020) Ezekiel J Emanuel and Abbe R. Gluck, The Trillion Dollar Revolution: How the Affordable Care Act Transformed Politics, Law, and Health Care in America (PublicAffairs, 2020) Linda C. McClain, Who's the Bigot?: Learning from Conflicts over Marriage and Civil Rights Law (Oxford University Press, 2020) Sanford Levinson and Jack M. Balkin, Democracy and Dysfunction (University of Chicago Press, 2019) Sanford Levinson, Written in Stone: Public Monuments in Changing Societies (Duke University Press 2018) Mark A. Graber, Sanford Levinson, and Mark Tushnet, eds., Constitutional Democracy in Crisis? (Oxford University Press 2018) Gerard Magliocca, The Heart of the Constitution: How the Bill of Rights became the Bill of Rights (Oxford University Press, 2018) Cynthia Levinson and Sanford Levinson, Fault Lines in the Constitution: The Framers, Their Fights, and the Flaws that Affect Us Today (Peachtree Publishers, 2017) Brian Z. Tamanaha, A Realistic Theory of Law (Cambridge University Press 2017) Sanford Levinson, Nullification and Secession in Modern Constitutional Thought (University Press of Kansas 2016) Sanford Levinson, An Argument Open to All: Reading The Federalist in the 21st Century (Yale University Press 2015) Stephen M. Griffin, Broken Trust: Dysfunctional Government and Constitutional Reform (University Press of Kansas, 2015) Frank Pasquale, The Black Box Society: The Secret Algorithms That Control Money and Information (Harvard University Press, 2015) Bruce Ackerman, We the People, Volume 3: The Civil Rights Revolution (Harvard University Press, 2014) Balkinization Symposium on We the People, Volume 3: The Civil Rights Revolution Joseph Fishkin, Bottlenecks: A New Theory of Equal Opportunity (Oxford University Press, 2014) Mark A. Graber, A New Introduction to American Constitutionalism (Oxford University Press, 2013) John Mikhail, Elements of Moral Cognition: Rawls' Linguistic Analogy and the Cognitive Science of Moral and Legal Judgment (Cambridge University Press, 2013) Gerard N. Magliocca, American Founding Son: John Bingham and the Invention of the Fourteenth Amendment (New York University Press, 2013) Stephen M. Griffin, Long Wars and the Constitution (Harvard University Press, 2013) Andrew Koppelman, The Tough Luck Constitution and the Assault on Health Care Reform (Oxford University Press, 2013) James E. Fleming and Linda C. McClain, Ordered Liberty: Rights, Responsibilities, and Virtues (Harvard University Press, 2013) Balkinization Symposium on Ordered Liberty: Rights, Responsibilities, and Virtues Andrew Koppelman, Defending American Religious Neutrality (Harvard University Press, 2013) Brian Z. Tamanaha, Failing Law Schools (University of Chicago Press, 2012) Sanford Levinson, Framed: America's 51 Constitutions and the Crisis of Governance (Oxford University Press, 2012) Linda C. McClain and Joanna L. Grossman, Gender Equality: Dimensions of Women's Equal Citizenship (Cambridge University Press, 2012) Mary Dudziak, War Time: An Idea, Its History, Its Consequences (Oxford University Press, 2012) Jack M. Balkin, Living Originalism (Harvard University Press, 2011) Jason Mazzone, Copyfraud and Other Abuses of Intellectual Property Law (Stanford University Press, 2011) Richard W. Garnett and Andrew Koppelman, First Amendment Stories, (Foundation Press 2011) Jack M. Balkin, Constitutional Redemption: Political Faith in an Unjust World (Harvard University Press, 2011) Gerard Magliocca, The Tragedy of William Jennings Bryan: Constitutional Law and the Politics of Backlash (Yale University Press, 2011) Bernard Harcourt, The Illusion of Free Markets: Punishment and the Myth of Natural Order (Harvard University Press, 2010) Bruce Ackerman, The Decline and Fall of the American Republic (Harvard University Press, 2010) Balkinization Symposium on The Decline and Fall of the American Republic Ian Ayres. Carrots and Sticks: Unlock the Power of Incentives to Get Things Done (Bantam Books, 2010) Mark Tushnet, Why the Constitution Matters (Yale University Press 2010) Ian Ayres and Barry Nalebuff: Lifecycle Investing: A New, Safe, and Audacious Way to Improve the Performance of Your Retirement Portfolio (Basic Books, 2010) Jack M. Balkin, The Laws of Change: I Ching and the Philosophy of Life (2d Edition, Sybil Creek Press 2009) Brian Z. Tamanaha, Beyond the Formalist-Realist Divide: The Role of Politics in Judging (Princeton University Press 2009) Andrew Koppelman and Tobias Barrington Wolff, A Right to Discriminate?: How the Case of Boy Scouts of America v. James Dale Warped the Law of Free Association (Yale University Press 2009) Jack M. Balkin and Reva B. Siegel, The Constitution in 2020 (Oxford University Press 2009) Heather K. Gerken, The Democracy Index: Why Our Election System Is Failing and How to Fix It (Princeton University Press 2009) Mary Dudziak, Exporting American Dreams: Thurgood Marshall's African Journey (Oxford University Press 2008) David Luban, Legal Ethics and Human Dignity (Cambridge Univ. Press 2007) Ian Ayres, Super Crunchers: Why Thinking-By-Numbers is the New Way to be Smart (Bantam 2007) Jack M. Balkin, James Grimmelmann, Eddan Katz, Nimrod Kozlovski, Shlomit Wagman and Tal Zarsky, eds., Cybercrime: Digital Cops in a Networked Environment (N.Y.U. Press 2007) Jack M. Balkin and Beth Simone Noveck, The State of Play: Law, Games, and Virtual Worlds (N.Y.U. Press 2006) Andrew Koppelman, Same Sex, Different States: When Same-Sex Marriages Cross State Lines (Yale University Press 2006) Brian Tamanaha, Law as a Means to an End (Cambridge University Press 2006) Sanford Levinson, Our Undemocratic Constitution (Oxford University Press 2006) Mark Graber, Dred Scott and the Problem of Constitutional Evil (Cambridge University Press 2006) Jack M. Balkin, ed., What Roe v. Wade Should Have Said (N.Y.U. Press 2005) Sanford Levinson, ed., Torture: A Collection (Oxford University Press 2004) Balkin.com homepage Bibliography Conlaw.net Cultural Software Writings Opeds The Information Society Project BrownvBoard.com Useful Links Syllabi and Exams |