Balkinization: Imagine the worst....(further studies of our potentially egregiously defective Constitution)

Comments:

Sandy:

Let's dispose of the snide and selectively partisan "experience" attacks first. Given that you have not demonstrated that Mr. Obama has equal nevertheless superior experience to Mrs. Palin, I would suggest that you have only imagined the second worst possibility. The most egregious possibility is Mr. Obama getting elected and surviving to assume the presidency being that he is the least qualified of the four presidential and vice presidential candidates.

With that taken care of, precisely what constitutional changes are you suggesting to remedy the "problem" of inadequately prepared Presidents or Vice Presidents?

You apparently do not like a presidential candidate choosing his running mate. See Palin.

Obviously democracy does not work. If the voters chose someone as utterly inexperienced as Obama for the top job, we can obviously not trust them to choose the VP either.

If the People are not competent to choose the presidential and vice presidential candidates, and the presidential candidates are not competent to choose the vice presidential candidates, who do you suggest do so?

# posted by

Bart DePalma : 5:02 PM

This comment has been removed by the author.

# posted by

Bart DePalma : 5:29 PM

Jim Treacher posted this pithy comparison between Palin and Obama:

One of them is little more than an elegant, attractive, dare I say sexy piece of eye candy.

The other one kills her own food.

# posted by

Bart DePalma : 5:30 PM

Is this necessary a Constitutional flaw? I mean, in 2000, John Hagelin was on the ballot in 39 states--easily enough to allow him to get an Electoral College majority. All that it would have taken to elect the man President was for a majority of people in those states to vote for him. But they didn't, and he stayed well away from the White House. And this had nothing to do with the Constitution (which did indeed make it a possibility, albeit a remote one)--it was our extra-constitutional political structures that prevented that from happening.

Your larger point over the last couple of days, as I understand it, is that the Constitution encourages frivolous choices for VP, such that people will vote for a frivolous VP candidate on the same ticket as a non-frivolous Presidential candidate, even where they would not vote for a frivolous candidate at the top of the ticket (i.e., Hagelin). But I don't see how this post furthers your argument--any conceivable Constitution will empower some actor to at some point make a foolish choice. To me, the possibility of a Palin presidency is more a demonstration of the failures of those extra-constitutional structures than of the Constitution.

# posted by

Andrew : 5:36 PM

Sandy --

I am struggling through your book, and apparently you prefer a parliamentary approach to replacement of public officials (once one gets beyond the conceit of voting no confidence in the Constitution). But it seems to arise from a fear of interregnum, and this post is just another illustration. This is the same sort of fear (engendered by nuclear weapons) that led to the 25th Amendment.

In our strong executive, two party system, interregnum is important. First, it allows for time to count and recount votes. The Bush v. Gore Court got it completely wrong, the deadline which they applied arose from the Hayes-Tilden election, and was intended to protect from national-level challenge conflicts resolved in the states by the specified date. If there's not resolution by the time the Electoral College votes are opened, then the Congress decides the challenge. Lame duck or war hawk, somebody has got to decide and it's not the Supreme Court.

Second, it allows for time to marshal a government. Take a look at the Plum Book. There are thousands of executive positions to be filled by a new president. This goes way beyond any parliamentary shadow cambinet. Unlike the British, we do not have a permanent civil service that watches out for the ongoing interests of the country (see Yes, Minister). Even in this era of permanent campaign, the people necessary to run the government are not the ones who won the government. Caveat bushies.

Third, the policies needed to run the country are not necessarily those adopted in the party platform or even the ones which the winning candidate advocated. We have to accept that politicians will say whatever it takes to get elected, and hope that they will get a grip on reality before they commit the country. But it makes a lot of sense to take the measure of what the people said in the election, figure out what's possible, prioritize what's desirable, coordinate with other policies, and develop a strategy after one receives a mandate rather than before.

If something were to happen to a nominee or president-elect, there will be another selection process and things will resume unabated, viz. Eagleton. Lyndon Johnson took over the presidency from Kennedy, and assumed Kennedy's policies and staff (except for personal staff) until they faded away. The not overly qualified Harry Truman won the VP nomination over the too-clever-by-half William O. Douglas and took over the FDR policies and staff until they faded away (or, like Ickes, imploded). The presidency is not one person (as the new Obama generation will find out to their disappointment), most of the influential insiders would be similar between Obama and Hillary, between McCain and Pallin. This may be a clean slate election between the two parties, but it is not a clean slate within the parties (like Reagan/Ford or Kennedy/Stevenson).

# posted by

Anonymous : 6:18 PM

I am all for free expression on Balkinization, and admit to having enjoyed the endless quarrel between Mr. DePalma and . . . well . . . everyone else. Especially on the torture (sorry, Bart: "enhanced interrogation") questions.

However, when the post itself more or less calls the inevitable DePalma quip that Sen. Obama is less qualified than Gov. Palin to be the POTUS to be more or less "insane" . . . isn't it time to just up and ban his drivel, so it doesn't make us gouge our eyes out in despair?

I have to think twice before I read the comments here, nowadays. Because I know that Hugh Hewitt will show up and vomit his egregious nonsense all over this otherwise nice little blog.

# posted by

S.G.E.W. : 7:37 PM

Bart:

I'd say that you lost every point you made in favor Palin over the past couple of days. How you can think that Sandy hasn't shown that she is unqualified and that Obama's qualifications are superior is a mystery.

# posted by

Bill : 8:07 PM

# posted by

Sandy Levinson : 8:08 PM

Sandy,

Sorry, I got distracted by Bart. I agree with you. The VP selection process is a flaw in the Constitution. We can never entirely eliminate the possibility of an idiot or madman occupying the Presidency or another important office, but it is surely a defect to have a system that not merely allows but actually provides incentives for a President to chose a VP who is unqualified to be President.

I'm not sure whether the unwillingness of so many people to admit that the Constitution is flawed is due to quasi-religious awe or to the fact that recognizing the flaws leads to amending the Constitution, a prospect that for good reason instills fear.

# posted by

Bill : 8:28 PM

How much experience did Clinton have (Bill, that is) and he did very well in the WH. Also, you tone is very unhelpful for an actual debate. But, I don't want her to sit at our table at lunch either.

# posted by

James W. Weirick : 8:32 PM

I guess for those of us who haven't read the book, it would be helpful to hear your proposed solution to the problem. Otherwise folks like me are left to guess at what it is. I suppose you could eliminate the Vice Presidency and have the succession fall to an apolitical office, like Secretary of State, ensuring, at least, that any successor would be fairly competent - or, the majority party in Congress can elect a new leader to hold the office until an election comes around. I recall in a previous thread where you argued for the abolition of the Vice Presidency, I argued that the Vice Presidency has the virtue of being an elective office, and that we should pause before making the successor to the President an appointed official. You countered with the claim that no one, or very few people, really bases their vote on who the Vice President is, so in essence the Vice Presidency isn't an elective office. I submit that this election may test that claim.

# posted by

Asher : 8:42 PM

Yojoe:

When he was elected President, Clinton had over ten years experience as Governor of Arkansas. He had also received a law degree and briefly taught law. So in a number of ways he was better qualified than Palin. The areas in which he lacked experience were how Washington works and foreign affairs. The former might have hurt him had he not had a cooperative Congress, which he did. As for foreign affairs, although he did not have experience, he had received an undergraduate degree in Foreign Service. If you look at his record as President, it begins rather weak. He didn't do very well in handling Rwanda, Somalia, or Haiti. It looks like he spent some time learning on the job.

# posted by

Bill : 8:44 PM

It's quite ironic that the one thing a Vice Presidential candidate could do to best show that he has an understanding of the Constitution and a respect for democracy that are suitable for a person assuming the office is to promise to resign immediately upon taking office so that his nomination could be put before Congress as per the 25th Amendment. Yeah, our Constitution screws the pooch on the Vice Presidential selection process.

# posted by

Unknown : 8:46 PM

Anybody who asserts that is either an out and out liar or an unmitigated fool.

Unmitigated fool. Ayup.

# posted by

mattski : 8:50 PM

We are placing too much emphasis on experience and not enough on knowledge. It wouldn't matter if Palin had lots of experience; she is unqualified as long as she believes that creationism should be taught in science classes and that global warming is not man-made. And consider this:

Q: Are you offended by the phrase "Under God" in the Pledge of Allegiance? Why or why not?

PALIN: Not on your life. If it was good enough for the founding fathers, its good enough for me....

By the way, although being a lawyer is not necessary to being qualified to be President, it certainly helps. That is another reason that it is ludicrous to compare Palin's qualifications to Obama's or Biden's.

# posted by

Henry : 9:23 PM

Just a short, semi-snarky ponderance:

The Constitutional framers honestly had no possible way to forsee people like Bart DePalma. They were geniuses in their own way, but no one could have predicted that level of determined ignorance.

They forsaw an informed, "thoughtful," and, let's not put too fine a point on it, "sane" electorate who would never, ever allow someone with Gov. Palin's "qualifications" to become the Vice President.

I wish I believed in zombies, so I could pray that Mssrs. Madison, Jefferson, et. al. would rise from their graves and rewrite the damned thing, bearing in mind that our nation is full of Bart and Fail.

# posted by

S.G.E.W. : 9:53 PM

Who said anything about near perfect? The overrepresentation of small states is outrageous. A Los Angeles Country Supervisor representa more people than the Representative from Wyoming.

The point is, there are always going to be "corner cases", like Woodrow Wilson's stroke or J.Q. Adams' election, where human-designed mechanisms fail to give a clear, fast-acting and desirable answer to an unanticipated conjunction of circumstances. Otherwise, there would never be litigation over contracts! This is why the "conceit" is such a cop-out.

I prefer a president elected for a limited time, for all that means for an inability to depose him for anything but the most outrageous malefactions, and for all that means for making the lame duck problem virtually unavoidable. Because there is an inevitable conflict between stability and responsiveness, and the 2-, 4-, 6- and 8-year cycles of our polity seem to cover the range of graspable yet functional time spans, I think they are a reasonable solution. The course of human events rarely covers them exactly, so there will be occasions when the good or bad qualities of candidates (or even their lives) will be revealed too soon or too late to affect an election. It's certainly better than the judiciary, where the cycles are 12-35 years, and the issue positions that caused their selection are unlikely to persist throughout their terms.

# posted by

Anonymous : 9:55 PM

I wrote a piece about this fascinating constitutional problem -- and some proposed reforms -- for the Boston Globe during the last presidential election cycle. Cites the work of Akhil Amar, Republican Sen. John Cornyn, Democratic Rep. Brad Sherman, among others, for those who are interested:

http://www.boston.com/news/globe/ideas/articles/2004/05/09/chaos_theory/

# posted by

Charlie Savage : 10:19 PM

Not sure how many Americans think we have a near perfect Constitution, especially with those polls suggesting so many thinking the BOR too much to bear. I'm really unsure how many HERE think so.

Let's take your scenarios. If McCain dies before Election Day, a replacement candidate would be chosen by the party. It is unlikely if it would be Palin.

McCain dies after but before the electoral vote. Again, the party can pick a replacement. The electors are pledged to him but even if he was alive, they don't HAVE to vote for him. I think laws involving pledged electors might be unconstitutional in some states to this degree. See c. 1950s dissent by Justice Jackson.

The "faithless elector" issue has been raised before. If he DIED, obviously, the electors need not do so, and can vote for the replacement. I reckon one way to go is to have congressional republicans (who were voted by the people) choose the replacement, but the best way is open to debate.

Finally, McCain is chosen by electoral vote, but dies before being sworn in. Now, here, Palin WOULD become President. It is sensible to have a back-up of this nature.

The people would have voted her in. Whose to blame there? If you think the choice is horrible, trust the people not to vote for it. If they do, "we the people" are the ultimate problem.

You don't like the choice. Fine. But, the method isn't to blame. The choice is. Let's say the secretary of state becomes President mid-term under some constitution. The person fills in the rest of the term.

This is not a bad way to go, I think. But, if the person is horrible, it might be.

As to Bart, if you think they weren't (for better or for worse) people like him back in the day, you think too much of your ancestors' universe.

# posted by

Joe : 10:29 PM

“But let's assume a third possibility, that the electors cast their votes and that McCain keels over prior to Inauguration Day. As a constitutional matter, I assume we might well be stuck with Governor Palin”

Isn’t that what the 3rd Section of the 20th Amendment says?

More generally, I don’t understand what these hypotheticals add to your previous argument. It is not disputed that if Governor Palin is elected Vice President, she will ascend to the Presidency under certain circumstances, even though you strongly believe she is unqualified to do so. That may or may not be a defect in the Constitution—these hypotheticals about the possibility of her ascension prior to inauguration don’t seem to me to illuminate the issue one way or the other.

One question, though (perhaps this has been covered earlier). Does the Constitution require that the Vice President be elected on the same ticket with the President? Could not the state legislatures provide for separate election if they desired?

Finally, I am curious about your view that Obama is “obviously” more qualified to be president than Palin. Are you saying that if Obama were a conservative who held the opposite view from you on every important issue, and Palin were a liberal who agreed with you on every on of those issues, you would nonetheless support Obama for president over Palin based on resume/experience? Or would you acknowledge that your view of Obama’s qualifications is based in part on your assessment of the substantive political positions and values that he holds?

# posted by

mls : 10:34 PM

A number of years ago Jeff Greenfield (the TV News Journalist) wrote a delightful book called "The People's Choice." In it, a constitutional "crisis" is created when the president elect dies from falling off a horse. The vice-president elect is an incapable (if sometimes honorable) hack who does not have much support (sort of, but not quite like Dan Quale). The key to the narrative was that this was after the election but BEFORE the electoral college actually met. And in the novel, some delegates to the college begin to publicly revolt . . .

Worthwhile reading, if only to imagine some other possibilities.

The Amazon URL:
http://www.amazon.com/Peoples-Choice-Novel-Jeff-Greenfield/dp/0452277051

# posted by

Chausovsky : 10:38 PM

P.S. I don't welcome McCain being elected but then dying for various reasons, but seriously, I can't see Palin being so much less qualified than President Bush.

If this scenario happens (don't bet the house on it), I think we can trust that Congress (Democratic) would insist she get some skilled v.p.

A Joe Lieberman simply would not be out of the realm of possibility. Likewise, she would have a Cabinet to assist her. The end of days would not be upon us.

Honestly, I don't trust McCain's judgment. Mr. Savage references the need to have a better fail safe mechanism in place. Maybe so. But, if we are making things up, any number of scenarios can be imagined.

After all, in one Star Trek: NT episode, things eventually led to the doctor being at the helm. See also the movie King Ralph. It simply is not the first thing that comes to mind when thinking of a bad veep pick.

# posted by

Joe : 10:38 PM

Re Joe's post: I remember lots of people saying in 2000, defending their support of George W. Bush against the clearly more qualified and experienced Al Gore, that "it really didn't matter that he was an ignorant dolt, because he'd have terrific advisers." What was never considered by these savants was the near certainty that these terrific advisers might disagree about important things, and that it would be left up to "the decider" to decide. We know what happened.

You can lead (Caligula's) horse to water, but you can't make her drink unless she wants to. To say the least, I'd be curious to know how Gov. Palin responds to Alaska advisers who give her advice that she doesn't particularly like.

I will probably write a full-scale blog post about the "transition" (and, of course, the possibility of problems computing the electoral vote) as a justification for the way we do things.

# posted by

Sandy Levinson : 11:21 PM

billposer:

How you can think that Sandy hasn't shown that she is unqualified and that Obama's qualifications are superior is a mystery.

He gets "RNC Gold Points" for every post. Enough of those and they'll send him a tote bag.

Cheers,

# posted by

Arne Langsetmo : 1:52 AM

Robert:

It's quite ironic that the one thing a Vice Presidential candidate could do to best show that he has an understanding of the Constitution and a respect for democracy that are suitable for a person assuming the office is to promise to resign immediately upon taking office so that his nomination could be put before Congress as per the 25th Amendment. Yeah, our Constitution screws the pooch on the Vice Presidential selection process.

It is noteworthy that both Democratic candidates have law degrees and a fair amount of experience with Constitutional law. Neither of the Republican candidates have any degree above a bachelor's.

Not to mention that neither Ctheney nor Dubya had law degrees either.

Considering the wholesale trashing of the Constitution and the laws of the land these last seven years, shouldn't we be looking for people that at least know what the law is?!?!?

Cheers,

# posted by

Arne Langsetmo : 1:58 AM

I sincerely wish someone would explain to me how
being governor of Texas is qualification for
anything. Lordy, you should see some of the
governors we have had in the past 50 years.

# posted by

Farris W : 6:51 AM

"never considered by these savants"

Ah the sarcasm. Of course, if he was so incompetent that disputes by advisers (which the 'savants' probably considered a good thing, since there are more than one side to any story), he would truly be incompetent. QED, I know.

The "savants" (some who overall were not idiots) figured his term as governor and such meant he could make decisions. Various presidents didn't have experience in various aspects of the job, so needed advisers. The key was their judgment overall. Mark Field raised this point.

I'll be looking for more of SL's imperfect Constitution where backup mechanisms that involving special fairly rare happenings will be sure to result in competent people in charge.

Another case would be swing votes in closely divided legislatures being in the hands of popular incompetents.

As to knowing the law, Obama knows the 4A and still voted for telecom immunity. Clinton also seemed to forget one or two things he learned in law school. But, overall, I think it's a useful education all things considered for this job.

# posted by

Joe : 6:57 AM

The lack of roll-eye smilies at this site only makes clearer the defective nature of the Constitution.

"It is noteworthy that both Democratic candidates have law degrees and a fair amount of experience with Constitutional law. Neither of the Republican candidates have any degree above a bachelor's."

Well, I for one would welcome not having a professional sophist running the executive branch. That's what lawyers are today, after all.

# posted by

Brett : 7:09 AM

"Considering the wholesale trashing of the Constitution and the laws of the land these last seven years, shouldn't we be looking for people that at least know what the law is?!?!?"

I suppose I should amplify on (my) above remark.

The Constitution has been trashed, wholesale, since at least the New Deal. The profession of constitutional scholarship is training in HOW to trash it, and still keep a straight face.

Nor would Obama refrain from trashing the Constitution. He'd merely trash different parts of it. Or, considering Congressional votes on Bush's trashing, I should say, additional parts of it. Not that McCain isn't as bad, when it comes to trashing the 1st amendment.

Yes, I'd relish not having the executive branch run by a professional soloist. Alas, that's somewhat like relishing that you're not being force fed bullshit, as you dig into your heap of horse shit....

Sandy is merely on the leading edge of the movement among the legal profession to stop trashing the Constitution, and just ditch it entirely.

# posted by

Brett : 7:33 AM

sandy levinson said...

No one has responded to my specific scenarios...

I continue to believe, for what it is worth, that no one could have a good faith belief that Barack Obama "is the least qualified of the four presidential and vice presidential candidates." Anybody who asserts that is either an out and out liar or an unmitigated fool. (If this gives offense to tender-minded readers, so be it.)

OK.

In the very unlikely event (less than 1% chance) in your scenario of McCain dying before the election, this Republican would indeed want a more qualified presidential candidate than Governor Palin. In the equally unlikely event that McCain dies immediately after being elected, Governor Palin would end up learning on the job. To this extent, the Plain pick is a risk, albeit a minute one.

Now I think you have a responsibility to go beyond name calling and support your contention that Obama is equally or more competent than Palin to be President, especially given that Obama and not Palin is actually running for the office. Specifically...

How does Obama's private employment as a "community organizer" better prepare him for the Presidency than Palin's management of a fishing company?

How does Obama's time as a Illinois legislator better prepare him for the Presidency than Palin's longer service as a small town mayor?

How do Obama's few months as a US Senator before he ran for President better prepare him for the Presidency than Palin's very successful 20 months as governor?

I am truly afraid that nothing short of going over the cliff will generate a serious conversation about the foreseeable minefields located in our defective 18th century Constitution (and our even more defective general political culture).

Sandy, I tried to start that discussion. Once again, what is your proposed solution to this alleged problem?

# posted by

Bart DePalma : 8:39 AM

Mark Kleiman and a commenter on his blog suggest that the a priori probability of VP Palin having to take over from POTUS McCain is one in five. The analysis does not include the risk of mild disability that would require VP Palin to take a more then symbolic role in government. US voters would not be voting for a spare wheel VP like Quayle or Agnew.

# posted by

James Wimberley : 8:47 AM

amesw said...

Mark Kleiman and a commenter on his blog suggest that the a priori probability of VP Palin having to take over from POTUS McCain is one in five.

Those are stats from the general population, only a tiny fraction of which could keep McCain's pace and many of which do not have McCain's medical monitoring.

The issue is whether McCain himself has any medical red flags which would indicate that he a risk to die suddenly. Apart from a prior cancer, there are none of which I am aware. If he were to get an untreatable cancer, the VP could be prepared for the presidency over a series of months.

Mr. Obama will have no prep time to gain the experience necessary to assume office.

# posted by

Bart DePalma : 9:29 AM

We lawyer are so important and powerful that it is unthinkable that the serfs would not elect one of us every time. I can't imagine a person without a JD being able to even tie his or her own shoe.

# posted by

James W. Weirick : 10:25 AM

Does the Constitution require that the Vice President be elected on the same ticket with the President? Could not the state legislatures provide for separate election if they desired?

Not easily. Remember, there's only one set of electors. It would be hard to find a set of people who would reliably vote for the President of one party and the VP of another.

Consider the problems which would arise if that did happen (we had it here in CA with the Lt. Gov.). The President couldn't use the VP for any important policy task, as has become common recently. Putting aside snarky comments about Dick Cheney, I think it's generally a good idea for the VP to be useful in that way. Worse yet, if the President were to die, the VP would completely change the direction of the country, contrary to the policy the voters wanted implemented. Though I think it's a small risk, this adds the disturbing incentive for extremists to murder the sitting President.

# posted by

Mark Field : 10:33 AM

Brett:

[Arne]: "It is noteworthy that both Democratic candidates have law degrees and a fair amount of experience with Constitutional law. Neither of the Republican candidates have any degree above a bachelor's."

Well, I for one would welcome not having a professional sophist running the executive branch.

Why?!?!? We've had a failed businessman doing it the last seven years, and we see the consequences.

Lawyers don't have a patent on sophistry. Maybe they know the law well enough to work around it (see, e.g., Addignton, Bybee, and Yoo), but those that don't even know it can be far worse. See, e.g., our friend and correspondent "Bart"....

Cheers,

# posted by

Arne Langsetmo : 11:48 AM

Brett:

Nor would Obama refrain from trashing the Constitution. He'd merely trash different parts of it.

So say you (and so says "Bart" too, who knows what the Supreme Court should have decided and is convinced that such is the actual law).

But what about ignoring statutory laws, raising bogus claims of "executive privilege" and "state secrets privilege", turning the DoJ into a partican hackery, handing out immunity left and right, and refusing to prosecute anyone who acted on the preznit's orders, because "if the preznit does it, that means it's not illegal"?

Cheers,

# posted by

Arne Langsetmo : 11:55 AM

Bart, MD, writes: "Apart from a prior cancer, there are none [no medical red flags] of which I am aware. If he were to get an untreatable cancer, the VP could be prepared for the presidency over a series of months."
John McCain has cancer. It's been well treated and he's in remission. Do you have adjusted life expectancy tables for a fit 72-year-old with a record of prior cancer and harsh imprisonment as a young man?
The image of Ms Palin boning up on South Ossetia, Kashmir, foreclosures, the budget deficit, Israel/Palestine, and a hundred other policy issues on which she has no background or recorded opinion is piquant. I suppose she could reach George Bush's level of ignorance in time; but George Bush has Dick Cheney. And while she's learning, who is doing the job?

# posted by

James Wimberley : 12:52 PM

FDR knew he probably wouldn't complete his third term

Fourth term. Sorry, can't resist the nitpick.

# posted by

Mark Field : 5:11 PM

I don't know whether to laugh reading this post or to let out a Gore-like sigh . . .

Your entire argument rests on your personal belief that Obama is qualified to be president but Palin is not. (No one is questioning whether McCain or Biden are qualified.) Since it is far from clear that Obama is qualified and far from clear that Palin is not, your conclusion that there is a constitutional defect is highly questionable.

On the first point (Obama), it bears repeating that he has no executive experience, no legislative accomplishments of any significance and nothing to commend him for the job except the ability to give a barn-burning speech. So is it a constitutional defect that the voters can ignore his thin resume and send him to the White House? Some people likely think so, but they are not small-d democrats. Our system allows the voters to make curious choices if they so choose. Henry Wallace, for example, to stay comfortably in the past. Or Richard Nixon.

If not, how can it be a constitutional defect that the voters (who do have the power to withhold their vote for a ticket if they don't like the VP) can send to the White House a sitting governor and former mayor because they have yet to articulate their position on whether South Ossetia is worth defending with military force?

As for the consequences of McCain or Obama dying prior to the electors meeting, what would happen is that the presidency would go to the winning VP candidate. Theoretically you could argue that the candidate from the winning party who did 2nd best in the primaries should get it, but this is not a parliamentary system and the independents may not have endorsed that candidate had she or he been the nominee. So I don' think either party could get away with substituting the presidential candidate out in this circumstance for someone not on the ticket. The runner up in the primaries would be the favorite to be selected as VP, however.

Again, Palin becoming president here through succession is no more troublesome than Obama becoming president if he wins and does not die. The risks are the same. I don't see the logic behind saying that the system works if the voters elect Obama president, but not if they elect Palin president. If the voters cannot stomach the prospect of Palin becoming president through succession, they should not vote for McCain. Likewise, if they don't like the prospect of Obama becoming president, they should not vote for Obama. This is not that difficult.

# posted by

Zachary : 6:14 PM

The image of Ms Palin boning up on South Ossetia, Kashmir, foreclosures, the budget deficit, Israel/Palestine, and a hundred other policy issues on which she has no background or recorded opinion is piquant. I suppose she could reach George Bush's level of ignorance in time; but George Bush has Dick Cheney. And while she's learning, who is doing the job?

This is true of nearly every governor elected to the presidency. Most of them have little or no experience in actually conducting or deciding questions of foreign policy plus some knowledge of these issues (but only on high profile issues) when they run for the office. They rely on ADVISORS who have lots of experience.

As for Cheney, I'm not sure where the idea comes from that the principal advisor to the president on foreign policy has to be the VP. That hasn't typically been the case. Did FDR rely on John Garner for foreign policy advice when he was elected president? I thought it was Cordell Hull. Did Carter rely mainly on Mondale? I thought it was Brzezinski.

Also, I don't know how you came to the conclusion that because Palin has no recorded view on an issue, or because you don't know what her views are, that she has never thought about an issue, doesn't know anything about it and/or doesn't care about it. But it doesn't seem to me to be a well-considered conclusion.

# posted by

Zachary : 6:27 PM

"Remember, there's only one set of electors."

This is a notable example of how the Constitution's mere words don't match its traditions.

The 12A was ratified in large part because of the rise of political parties but its words actually do not really recognize them as such.

For instance, the 12A specifically notes that there should be "distinct ballots" for vice president and president. This might surprise, since it seems to many you vote for a ticket.

Likewise, the fact you vote for pledged electors also is not compelled at all by the 12A. It does not say how the electors will be chosen as such. For example, the electors conceivably might be not all be for both the pres and vice pres. There can be a McCain/Biden set etc.

As MF notes, mixing and matching leads to problems. See Adams/Jefferson. But, that's practical results. The electors chosen need not be pledged at all. Not winner take all. etc.

# posted by

Joe : 7:07 PM

Zachary: as a potential voter, I would expect candidates for high office to persuade me of their superior knowledge and judgement, not plead for the benefit of the doubt. But then I'm European, maybe American voters are more comfortable with mediocrity. We will soon find out.

# posted by

James Wimberley : 8:19 PM

"So say you (and so says "Bart" too, who knows what the Supreme Court should have decided and is convinced that such is the actual law)."

I know that when somebody says they support an explicit constitutional right, and then urge that any community which choses to be able to utterly abrogate it, that I'm being fed a line of bull. A good deal of current constitutional jurisprudence is such obvious garbage that it takes extensive training to rationalize it.

# posted by

Brett : 8:39 PM

Why is the New Deal the line drawn? Was separate but equal and jailing those who protested the draft (e.g., a presidential candidate) somehow a product of an age better than post-New Deal?

Heck, the SC didn't even consistently hold back federal power. The "Lochner Era" has been exaggerated, its peak not really that long. And, an early campaign funding law involving corporations was upheld too.

[I asked B. once when his SC golden age was. Don't recall an answer. Marshall was too pro-fed. Maybe the days of Taney? OTOH, if one wants to be selective, maybe the latter 1800s. Helps if you aren't a black person etc. though.]

Anyway, we are a nation of laws, not men, but the lawyers are disreputable sorts. Trying to execute the law w/o their help is a nice trick. Politicians are bad too. We need legislators who aren't politicians or lawyers.

Even Palin fails that test. Sorry, utopia means "no where."

# posted by

Joe : 10:07 PM

BTW: So far, folks in Canada I've talked to WRT Palin so far have said "WTF?!?!?"

Cheers,

# posted by

Arne Langsetmo : 2:14 AM

Zachary:

Again, Palin becoming president here through succession is no more troublesome than Obama becoming president if he wins and does not die.

Well, if we want as preznit a journalism major who thinks that our kiddies should be taught the earth is 6000 years old....

But haven't we had enough of under-performing know-nothings these last seven years?

Cheers,

# posted by

Arne Langsetmo : 2:18 AM

"Why is the New Deal the line drawn?"

The Constitution has been occasionally violated almost from day one, and was essentially suspended for the duration of the civil war, but I'd say FDR was the first President to approach circumventing the Constitution as a systematic goal of his administration.

"Well, if we want as preznit a journalism major who thinks that our kiddies should be taught the earth is 6000 years old..."

I rather like the idea of teaching our children that some people still think that the earth is 6000 years old. Immunizes them against nonsense. Of course advocating that sort of thing is easy to mock, if you don't care if you're accurate, just that you get a blow in.

# posted by

Brett : 6:55 AM

Brett:

[Arne]: "Well, if we want as preznit a journalism major who thinks that our kiddies should be taught the earth is 6000 years old..."

I rather like the idea of teaching our children that some people still think that the earth is 6000 years old.

As long as we teach the kiddies that these people are eedjits and scientific illiterates ... and predominantly RW Republicans. That wasn't what Palin was proposing.

Cheers,

# posted by

Arne Langsetmo : 8:03 AM

I never fail to be amazed by the degree of complacence exhibited by Americans who apparently believe that we have a near-perfect Constitution. No one has responded to my specific scenarios, perhaps because everyone is certain that nothing could possibly happen in the foreseeable future to the 72-year-old John McCain.

“Our Constitution is in actual operation; everything appears to promise that it will last; but in this world nothing is certain but death and taxes.”
Benjamin Franklin
http://quotations.about.com/cs/moretypes/a/bls_death_famou.htm

“Death and taxes and childbirth! There's never any convenient time for any of them!”
Scarlett O'Hara, in “Gone with the Wind”(1936) by Margaret Mitchell
Columbia World of Quotations at
http://www.bartleby.com/66/53/40053.html

“O Death! thou comest when I had thee least in mind!”
Unknown
Columbia, supra, at
http://www.bartleby.com/66/86/62386.html

“No one can confidently say that he will still be living tomorrow.”
Euripides
http://www.brainyquote.com/quotes/quotes/e/euripides104787.html

”It is possible to provide security against other ills, but as far as death is concerned, we men live in a city without walls.”
Epicurus
http://www.brainyquote.com/quotes/quotes/e/epicurus101374.html

"In the long run we are all dead."
John Maynard Keynes
http://www.quoteworld.org/quotes/7728

The proposition that “nothing could possibly happen in the foreseeable future to the 72-year-old John McCain” is self-evidently false. No reasonable person could believe otherwise. The notion is so at odds with reality that anyone who believed it would be not merely mistaken but delusional.

Humans are susceptible to mental disorders, and some cause delusions in those they afflict. Its my impression that it is not uncommon for such delusions to involve public figures (e.g. film stars, government officials). While all humans, like Socrates, are mortal, a much smaller percentage will suffer from delusion producing mental illnesses.

Unless individuals explicitly state they are "certain that nothing could possibly happen in the foreseeable future" to McCain (or some synonymous formulation), such a belief should not be attributed to them by inference, from other stated opinions or positions, or from their failure to “respond[] to [Sandy’s] specific scenarios.

It’s very unlikely that “everyone is certain that nothing could possibly happen in the foreseeable future to the 72-year-old John McCain.” But if everyone is, the consequences would not be averted by the Constitution as it is now, or with any changes that I can conceive of.

# posted by

Thomas : 3:30 PM