Stephen Gillers: Bill Clinton for Vice President!

Roundup: Media's Take

Law professor Stephen Gillers, in the NYT (March 3, 2004):

With John Edwards's decision to quit the race, expected to be announced officially today, John Kerry's nomination as the Democratic candidate for president is secure. Speculation about his choice for vice president can now begin in earnest.

Mr. Edwards himself is an obvious choice: a skilled campaigner, he would also attract Southern voters. Other possibilities include Senator Evan Bayh of Indiana and Gov. Bill Richardson of New Mexico, who have both regional appeal and executive experience, and dark-horse candidates like former Senator Sam Nunn of Georgia.

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

Mr. Clinton's strengths would compensate for Mr. Kerry's weaknesses almost perfectly. Not only is Mr. Clinton the most talented campaigner of his generation, but he is also a Southerner — and since 1948, when Harry S. Truman chose Senator Alben Barkley of Kentucky as his running mate, every successful Democratic ticket has included a Southern politician.

Besides, people might even pay to watch Bill Clinton debate Dick Cheney. So why not?

The first objection, the constitutional one, can be disposed of easily. The Constitution does not prevent Mr. 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 Mr. Clinton were vice president he would be in line for the presidency. But Mr. Clinton would succeed Mr. 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.

So much for the constitutional obstacles. The political ones may be more formidable. They can be summarized in two questions: would Mr. Clinton want the job; and would Mr. Kerry want him to take it? We won't know until we ask, of course. But before asking, we might cite some reasons for both men to consider a Kerry-Clinton ticket seriously....


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