Monday, May 01, 2006

West Wing and the Constitution (II)

Sandy Levinson

Tonight's West Wing lesson in constitutional structure involved choosing a new vice president following the unanticipated death of Leo McGarity. The upstanding president elect refuses simply to "order" the 272 Democratic electors to vote for his choice, the Democratic governor of Pennsylvania, because this would in fact be undemocratic. He will, therefore, apparently wait until after his inauguration to formally nominate him and, therefore, subject him to confirmation by the House and the Senate, as was the case with Gerald Ford and then Nelson Rockefeller. On the other hand, he fears that Republican senators, who hold a majority, will refuse to confirm Baker, not least because he is already the front runner for 2012. So it appears that Santos will not only be inaugurated without there being a vice president, but also that the office might be vacant for at least sesveral weeks, assuming that the Republicans eventually submit to public pressure. Since the House is now Democratic, the person next in line is the Speaker, but an earlier program gave no reason to believe that the new Speaker is remotely fit to be president.

So is this just another stupidity of the Constitution? And, if so, what precisely is the stupidity? Is it having a vice president at all? David Currie, among others, believes that the basic mistake in 1803 (when the 12th Amendment was added to the Constitution to prevent another fiasco like 1800) was retaining the vice presidency at all. Most countries, even with presidential systems, seem able to do without one. (There's a marvelous interview with Carlos Fuentes in today's Times Magazine explaining why Mexico has no vice president.) Or is it that a partisan House or Senate would indeed try to deprive the President of his/her choice? But why SHOULD a president simply be able to pick by fiat his/her successor, unless we do indeed treat the president as a quasi-monarch? Imagine that Dick Chency indeed leaves office, and that Bush decides that the best replacement is Donald Rumsfeld. (Even I can't imagine that he would be so incredibly stupid, but it's my hypothetical.) Surely the Democrats would be under no duty to say "well, it's his choice." We would surely expect them to filibuster on the altogether correct grounds that he is unfit to be President (unlike, say, John McCain).

There would be no need for this discussion were it not for the sad and untimely death of John Spencer, a fine actor who is much missed. And I fear that the replacement for West Wing will not be the only program on TV that has actually integrated into its story line a number of obscure, but highly important, issues of constitutional structure.


Assuming that Santos runs for re-election, Baker can't run until 2016. That is, something happened to the years of Presidential elections in the West Wing world.

Allowing the elected President to chose who replaces him in the event he's incapacitated, is a sort of proxy for democracy, assuming the President would pick somebody like himself.

To the extent VPs are chosen to "ballance the ticket", instead, of course, it's an awfully BAD proxy...

Commander-in-Chief with Geena Davis, if it survives, might raise issues like this to some extent. Anyway, w/o WW, there will likely be a few shots at replacing it with a program in that ilk.

Anyway, Santos has the right sentiment, but the EC is what we have now. The EC picks the VP. Election Day is about appointing electors. The EC will pick Baker (his choice) and that will be that. I guess Baker could resign ...

Another possibility is that a few dissident electors do not pick Baker. If there is no majority, the Senate (Republican) chooses the VP among the top two candidates.

The 20A deals with a situation when there is a death and the choice goes to the Senate. I guess it should have also dealt with a death between Election Day and Electoral College Day.

Is it actually possible for Santos to order his electors to vote for his choice? I believe that several states require electors by law to vote for the person whose name appears on the ballot.

Meanwhile, Commander in Chief is setting up another crisis. The Vice President, whose TV name I forget but he's based on Wes Clark, has resigned. The President is about to get ill, which Speaker Templeton seems to be planning to use as an excuse to invoke the 25th amendment and take over.

Er, 2014. West Wing is off by two years: Bartlett took office in January of 98, so that the show, starting the subsequent fall, shows them nine months into office. The most recent primaries, of course, started a year early; presumably, the parties and the states made some deal. And with the conventions in May? And a year-long campaign leading up to generals in May? In fact, I think that that's a trick of the camera. But, yeah, Baker will be running in 2014, probably.

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