Monday, October 16, 2017

The 25th and the 45th--on 3Quarks

What happens when you get a bunch of lawyers together to discuss the possibility of a coup d'état? A Constitutional coup d'état?

Don't faint. To the obvious disappointment of a journalist who attended, this wasn't some Trotskyite meeting in a small room with nicotine-stained walls, but a conference at the Fordham University School of Law, celebrating the 50th anniversary of the adoption of the 25th Amendment "Continuity in the Presidency: Gaps and Solutions. Building on the Legacy of the 25th Amendment."

Lawyers being lawyers, there was a lot of talking and hypothesizing and arcana, spiced up with some name-dropping of the still and once-famous, and more than a little inside baseball. I can't do justice to the whole story, but it makes for fascinating hearing: How Birch Bayh, then Indiana's junior Senator and 99th in Senatorial seniority, managed to keep alive the Subcommittee on Constitutional Amendments without money or space (they met in a tiny converted bathroom) and apply his extraordinary tact to accomplish something people thought impossible. How the ABA, then a considerably smaller and less influential group still tainted by a prior obsession with Communists in the profession, saw this issue as both the right and strategically important thing to do, and provided support in Washington and critical infrastructure at the state level. And how John Feerick, as a lawyer in his mid-20s (later Dean of Fordham Law School, and a featured speaker at the conference), had an Orson-Welles-makes-Citizen-Kane moment when he managed to have published and distributed a Fordham Law Review article on Presidential Succession—in October 1963—and became an instant authority when national tragedy the very next month made it relevant.

Feerick's issue was ripe and had been discussed for decades, but JFK's assassination gave the reform efforts an energy that had previously been lacking. Yet success was also due in no small part to Bayh and Feerick's insight that the enemy of the good was the perfect. They remained disciplined and focused on the two issues that were critical, filling Vice Presidential vacancies, regardless of their cause, and the voluntary or involuntary (but possibly temporary) replacement of the President due to incapacity. Because these were largely apolitical, freshly and painfully in the public eye, and perceived to be of national importance, the pair were able to convince many in Congress to put aside technical differences and turf disputes to reach consensus.

It might seem bizarre to our modern eyes, which are accustomed to seeing Vice Presidents orating, spinning, showing up at national disasters, and walking out of football games, but for 180-odd years, the Vice Presidency was a wasting asset. Once you used it up, it was gone. And Vice Presidential vacancies were common—VPs either ascended to the Presidency, or "went to a better place." James Madison seemed to have a particularly ghoulish effect on his choices—both were lost to history on his watch. And few people cared all that much. The Vice Presidency was seen as an afterthought and even a bit of a joke. John Nance Gardner, FDR's Veep from 1933-1941 (and former Speaker of the House, a real job), famously called it "not worth a warm bucket of piss" and he was probably exaggerating its virtues.