Stanley I. Kutler: The Vice Presidency ... Hype and Flourishes





[Stanley Kutler is the author of “Wars of Watergate” and of numerous writings on American constitutional law and the presidency.]

For two centuries, selecting vice presidential candidates was at best a mere afterthought. Hardly anyone knew of the process, if indeed one existed aside from a brief huddle by the presidential candidate with a few advisers and friends. The presidential nominees usually settled on lesser-known figures, deserved obscurities in American history.

Mark Twain once remarked about a man with two sons: One went to sea, the other became vice president, and neither was heard of again. And then there’s Mr. Dooley, the national wit at the turn of the 20th century: “Th’ Presidincy is th’ highest office in th’ gift iv th’ people. Th’ Vice-Prisidincy is th’ next highest an’ th’ lowest. It isn’t a crime exactly. Ye can’t be sint to jail f’r it, but it’s a kind iv a disgrace. It’s like writin’ anonymous letters.”

We have scant evidence that vice presidential nominees influence voters very much. Will possible John McCain voters be swayed by an added choice of Mitt Romney, Charles Crist, Bobby Jindal or any other equally insignificant? Some Democrats yearn for Hillary Clinton’s nomination, envisioning an irresistible union of race and gender politics. An office once mocked as totally obscure now has become a desirable prize.

Our very first vice president, John Adams, at his crankiest, complained that “my country has in its wisdom contrived for me the most insignificant office that ever the invention of man contrived or his imagination conceived.” He worked almost in complete anonymity, except when he had a row over his title while serving as the Senate’s presiding officer (the only constitutionally specific function of the vice presidency). The ever-vain Adams wanted to be called “His Excellency,” but the senators, deeply imbued with republican principles, derided him as “His Rotundity.”

Adams left a legacy of disparagement. Franklin D. Roosevelt’s vice president for his first two terms, John Nance Garner, called the office “a bucket of warm spit”; journalistic practice then did not permit his different characterization. Nelson Rockefeller famously dismissed it as “stand-by equipment,” but then like Lord Byron’s lady who said “she’d ne’er consent,” he later consented. And for popular culture, George Gershwin immortalized the unknown Alexander Throttlebottom as the quintessential nominee. Thomas Jefferson, our second vice president, on the other hand, found it an “honorable and easy” place, compared to the higher office, which he dubbed “a splendid misery.”

The selection of Adams recognized his faithful service to the new nation; more pointedly, it reflected the reality of sectional politics. George Washington, Virginian, would be balanced with a Massachusetts man, and thus emerged a long-prevailing custom. The tradition proved strong enough for FDR in 1944 to abandon the sitting VP, Henry Wallace, the liberals’ favorite, for Harry Truman, an obscure, border-state senator as his running mate. In 1952, Adlai Stevenson followed the Democrats’ proven sectional model, choosing John Sparkman as his running mate, a quiet, pleasant, obscure Southerner—and segregationist.

The sectional model reappeared in an unanticipated, surprising way in 1960 when John F. Kennedy selected Lyndon Baines Johnson, the Texan, who had been the Democrats’ Senate leader and the preferred choice of the South. Truth was, Johnson had fought for years to shed the perception of him as a Southerner.

The Kennedy-Johnson ticket probably is the sole instance where the selected vice presidential candidate carried the ticket to victory. Johnson (and Lady Bird’s) famous “corn-pone express” train meandered down the southern East Coast and west to Texas, and undoubtedly swayed the vote in many states close to casting off their Democratic moorings. The 1960 victory, and LBJ’s smashing national sweep in 1964, however, only postponed a new “Solid South”—one dominated by the Republicans.

The determination of Kennedy loyalists, assisted by the passivity of the president, doomed Johnson’s thousand days as vice president. The man who truly had been the second most powerful official as Senate majority leader perhaps spent a great deal of time pondering the wisdom of Adams, Garner and Rockefeller.

Johnson’s isolation underscored the derivative-only powers of the vice president. The president’s wishes are the only key to the meaning of the vice presidency. Richard Nixon advertised himself as the most active vice president in history. But when President Dwight Eisenhower was asked in 1960 to cite some of Nixon’s accomplishments, Ike responded that if he had a week he might come up with something.

During the past 60 years, each new president has established a different relationship with his vice president, one that announced a new role and new duties. Nixon, Johnson, Spiro Agnew, Gerald Ford, Rockefeller, Walter Mondale, George H.W. Bush and Al Gore all came to the office with substantial records of their own, and all were promised a different, more powerful role. Yet the president’s hierarchal authority remained clear to the public, and for the two men. Until recently.

Dick Cheney famously headed George W. Bush’s VP search process. Reminiscent of a bad Hollywood movie or a scene out of Mafia doings, Bush selected Cheney; how and why remains a mystery.

Cheney came to office convinced that Watergate had left the presidency wounded and weakened, particularly against Congress. Cheney and his staff have promoted the notion of a “unitary presidency,” arguing with absolutely no evidence that presidential powers had eroded for a quarter-century (under Ronald Reagan, too?), and their views would restore the “strong presidency.” The theory incidentally proved expansive enough to carry the vice president’s office as almost co-equal to the president’s.

Cheney has insisted that his office is unique, straddling the executive and legislative branches. Many critics dismissed that assertion as outlandish and lacking any historical basis. But the Office of Legal Counsel (OLC) has nurtured a prop over the past four decades with several opinions supporting Cheney’s assertion. Republicans have dominated the OLC since 1969 and often have imposed an ideological agenda at odds with the prevailing constitutional consensus. Their agenda foreshadowed results far beyond what could have been imagined. A freedom-of-information request by the Web site Secrecy News has resulted in the release of more than a dozen OLC opinions regarding vice presidential authority, opinions curiously withheld for years by the Department of Justice.

William H. Rehnquist—the “president’s lawyer,” a term coined by Nixon to gild the lily when he appointed Rehnquist to the court—offered a 1969 OLC opinion that foreshadowed a similar argument offered last year by Vice President Cheney. “The Vice President, of course, occupies a unique position under the Constitution,” Rehnquist wrote. “For some purposes, he is an officer of the Legislative Branch, and his status in the Executive Branch is not altogether clear,” he wrote in a 1969 OLC opinion that anticipated Cheney’s now familiar argument.

President Nixon, determined to keep Vice President Agnew on a short leash, undoubtedly ignored these remarks. Assistant Attorney General Antonin Scalia’s 1974 opinion assuredly would have outraged Nixon: “With regard to the Vice President there is even a constitutional question whether the President can direct him to abide by prescribed standards of conduct,” asserted Scalia. Cheney and his staff may well start each day with Scalia’s mantra: “The Vice Presidential Office is an independent constitutional office, and the Vice President is independently elected. Just as the President cannot remove the Vice President, it would seem he may not dictate his standards of conduct,” the future Justice Scalia wrote.

Have Cheney and Bush imposed a whole new standard for the vice presidency? Was the vice president intended to be the “second most powerful” official? “Original intent” and the record of the first Congress indicate otherwise. In the end the question is irrelevant—OLC opinions notwithstanding—for the office has only derivative powers bestowed by the president. The vice president is not entitled to a White House office; by statute, he sits on various committees, most notably, the National Security Council—but a seat is not power. The president gives; the president takes away. Will the Bush-Cheney presidency be a precedent—or a warning for John McCain and Barack Obama?



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