Baltimore Sun

A woman for VP? Not necessaril­y

- By Kenneth Lasson

At the last nationally televised debate between Joe Biden and Bernie Sanders, both presidenti­al candidates declared that they would nominate a woman as their vice-presidenti­al running mates. Mr. Biden also proclaimed that the first chance he’d get to appoint a U.S. Supreme Court Justice, he’d pick a black woman, adding “It’s about time.”

This wrongheade­d political gesture by the presumptiv­e Democratic nominee should not sit well with the American electorate. The sole criterion for selection should be the best person available.

When the office first came into existence in 1789, the vice president was the person who received the second most votes in the Electoral College. But in the 1800 election there was a tie between Thomas Jefferson and Aaron Burr, which culminated in selection of the president by the House of Representa­tives. To prevent such an event from happening again, the Twelfth Amendment was added to the Constituti­on, creating the current system where electors cast a separate ballot for the vice presidency.

Ultimately, it was thus the people, through their elected representa­tives, who made the decision.

That choice was not one to be taken lightly. The vice president would automatica­lly assume the presidency if the president died, resigned or was impeached and removed from office. Over the years no fewer than nine vice presidents have ascended in this way: eight after a President died (John Tyler, Millard Fillmore, Andrew Johnson, Chester A. Arthur, Theodore Roosevelt, Calvin Coolidge, Harry S. Truman and Lyndon B. Johnson) and one (Gerald Ford) after Richard Nixon resigned in 1974.

In addition, the vice president serves as the president of the Senate and may choose to cast a tiebreakin­g vote on decisions made by the Senate.

Vice presidents have exercised this latter power to varying extents over the years.

But Mr. Biden has left no wiggle room. In his premature victory celebratio­n he said there are women in this country who, right now, are capable of being president. He’s certainly right about that — the obvious candidates being Senators Elizabeth Warren, Amy Klobuchar, and Kamala Harris, Representa­tive Tulsi Gabbard and former U.S. Ambassador to the United Nations Nikki Haley.

Even Hillary Clinton remains a possibilit­y, if only in her own mind (“I never say never.”)

The 2016 election offered a full panoply of what-ifs, the biggest of which may have been whether Ms. Clinton would have pulled out an Electoral College win if then-FBI Director James Comey hadn’t decided to reopen the bureau’s investigat­ion into her emails just days before the election. One result was an immediate drop in her polling. But that’s the way it is in many elections.

The consequenc­es of preselecti­ng a Supreme Court Justice on the basis of race or gender are somewhat more weighty. The original court had only six members and heard few cases. Its power and prestige grew substantia­lly under Chief Justice John Marshall, when it establishe­d the power of judicial review over acts of Congress and specified itself as the ultimate interprete­r of the Constituti­on in what was perhaps the first landmark decision, Marbury v. Madison.

For the past several decades the court has become increasing­ly politicize­d. Clerks hired by each of the justices are often given considerab­le leeway in drafting opinions. This hiring trend has served to reinforce the impression that the court is a kind of super-legislatur­e that responds to ideologica­l arguments rather than a legal institutio­n responding to concerns grounded in the rule of law. As David J. Garrow, a professor of history at the University of Cambridge, put it in The New York Times, the clerk workforce “is getting to be like the House of Representa­tives. Each side is putting forward only ideologica­l purists.”

Although it is a unique presidenti­al prerogativ­e to appoint justices to the court, such decisions should not be made without concern for the tenor of the times, and the temperamen­t of the populace.

Even in the wake of events over the past two weeks, for Mr. Biden to short-circuit that process — by either naming a running mate or suggesting a Supreme Court nominee based on race or gender — is little more than shortsight­ed political expedience.

Newspapers in English

Newspapers from United States