From "Bucket of Warm Piss" to Bench Coach: What the Modern Vice President Does Every Day
	By MICHAEL C. DORF
	Wednesday, Sept. 24, 2008

The Vice Presidency and the Constitution

Under the original Constitution, the Vice Presidency was a kind of consolation prize, awarded to the candidate who came in second in the electoral college. That system worked well for the first two Presidential elections, which George Washington won handily. John Adams was the second choice and he happily served as Vice President under Washington, knowing that his turn would come.

The Constitution's framers did not anticipate the quick rise of political parties. By the time of the 1796 election, Adams was the head of the Federalist Party, opposed by Thomas Jefferson's Democratic-Republican Party. Adams won, with Jefferson coming in second, and as a result, the Vice President did not support the President's policies. Although the two men would later renew the close personal bond they forged during the Revolution, their relationship frayed during the Adams Presidency, as they favored very different approaches to the key issues of the day. The Adams Administration even brought sedition prosecutions against Jefferson's political allies, while Jefferson anonymously authored critiques of the Administration.

The original framework eventually broke down, in the election of 1800. This time Jefferson won, but because he had run on a joint ticket with Aaron Burr, electors favoring the Democratic-Republican party cast their votes in equal numbers for both Jefferson and Burr. Even though Burr had been meant to take the Vice Presidency, the election was then to be decided by the outgoing House of Representatives, still in Federalist hands. Only after numerous ballots was the deadlock broken, but by then, the system's flaws had been exposed. The Twelfth Amendment was in place in time for the election of 1804, and ever since then, parties designate which candidate is running for President, and which for Vice President.

But what is it that the Vice President actually does? By far the V.P.'s most important job is to be prepared to become President in the event of the latter's permanent incapacity or death. The Twenty-Fifth Amendment--ratified in 1967--also authorizes the President to transfer his power to the Vice President temporarily. In recent years, Presidents undergoing surgery requiring sedation have utilized this procedure to ensure that the nation would not be without a Chief Executive should a crisis arise while they were unconscious.

Besides waiting patiently for the President to die or become incapacitated, the Vice President's only constitutionally-assigned duty is to preside over, and break ties in, the Senate. However, the Vice President does not sit in committees in the Senate, and the full Senate does not meet for anything resembling a 40-hour work week. Even when the full Senate is in session, the President pro tempore (by custom, the most senior member of the Senate) can preside in the Vice President's absence.

So far as the Constitution is concerned, the only non-ceremonial duty of the Vice President is to show up on those rare occasions when the full Senate is tied on an important vote. And even then, if the measure in question will not pass the House of Representatives -- or if it will pass the House, but the President would veto the bill if it passed the Senate also -- the Vice President's vote is not relevant to the ultimate fate of a bill.

Thus, we come to the thrust of Governor Palin's question: If the Vice President is only ever-so-rarely needed to do anything that matters, what exactly does he (or she) do all day?

John Nance Garner, who served as Vice President for FDR's first two terms, colorfully suggested that the V.P. is utterly insignificant, opining that the job is "not worth a bucket of warm piss." (The line is often cleaned up slightly by the substitution of "spit" for "piss, but either way, the meaning is clear.) Yet his evaluation is much less accurate today than it was when he served.

The Specific Extra Jobs of the Vice President

Vice Presidents can be granted duties beyond those assigned by the Constitution. Until relatively recently, these duties ranged from the ceremonial to the odious. Most notoriously, a President can send his Vice President as an emissary to the funeral of a foreign head of state. Indeed, because Presidents have frequently chosen political rivals as running mates, the notion of a Vice President on a semi-permanent world funereal tour is a staple of political humor. Certainly in Garner's day, much of the work of the Vice President was ambassadorial in this relatively unimportant way.

But things have changed dramatically in recent years. Beginning with Walter Mondale's substantial role in the Carter Administration, and progressing in giant leaps with Vice Presidents Gore and Cheney under Presidents Clinton and Bush, respectively, the Vice President has taken on much more substantive responsibilities. These come in two forms.

First, specific policy tasks have been placed under the supervision of the Vice President. Dan Quayle was the Chairman of the National Space Council under the first President Bush; Gore oversaw the Reinventing Government initiative of the Clinton Administration; and Cheney directed the Energy Task Force under the current President Bush. Each was charged with making policy, acting in his realm as a de facto Department head.

Whether this sort of arrangement technically satisfies the Constitution is not entirely clear. The Constitution states that Heads of Departments must be confirmed by the Senate, and the Vice President does not undergo Senate confirmation. However, the arrangement pretty clearly satisfies the spirit of the Constitution. The point of Senate confirmation of cabinet officials is to ensure that people who wield great power are acceptable to the People's representatives. However, unlike cabinet officers, whose identities are typically not known during the election campaign, Vice Presidents are elected by the People -- thereby rendering Senate confirmation unnecessary to ensure democratic accountability.

Thus, in a small way I disagree with John Dean's recent analysis for this site. In explaining how the Twenty-Fifth Amendment and other constitutional provisions tacitly require that a Vice President be ready to handle the job of President, Dean recounts how Presidents Nixon and Ford admirably insisted on well-credentialed replacement Vice Presidents. Dean then concludes that Governor Palin falls short of the mark.

I do not disagree with Dean's assessment of Palin's background and experience, but the context is different. When the President nominates someone to fill a Vice Presidential vacancy, the President must act as a surrogate for the voters. In such circumstances, it would be irresponsible to nominate, or for Congress to confirm, someone who lacks the experience, background, and temperament to lead the country. However, if the People choose to elect a President despite the apparent lack of qualifications of his running mate, then, as far as the Constitution is concerned, the choice is legitimate. In other words, in a contested election, the technical qualifications for office are the only qualifications for office.

The Vice President as "Bench Coach"

Even more important than the contributions of modern Vice Presidents with specific portfolios has been the role that the modern Vice President plays as a kind of "bench coach" to the President. A bench coach in baseball sits at the side of the manager (on the bench), and acts as both an adviser and a sounding board. Should we send the runner? Should we pinch-hit? As a trusted confidante, the bench coach helps the manager make tough decisions.

Modern Vice Presidents--and especially Gore and Cheney--have served the bench coach function. Reportedly, Gore brought discipline and focus to meetings in the Clinton Administration, which would otherwise tend to ramble. Meanwhile, the current President Bush has placed enormous confidence in Cheney. The few occasions on which the President acted against Cheney's advice--such as his decision to fire Donald Rumsfeld in late 2006--are notable for their departure from the norm.

The notion of Vice President as bench coach is a quite recent development. Even long after the adoption of the Twelfth Amendment, Vice Presidents were not especially trusted by the Presidents under whom they served. Often, that was a product of electoral politics: To increase the chances of election, prospective Presidents sought to "balance the ticket," typically by picking a rival with quite different views. Thus, John F. Kennedy's relations with Lyndon Johnson were complicated at best, and Ronald Reagan had to swallow hard before asking George H.W. Bush--who had called Reagan's platform "voodoo economics"--to be his running mate.

That sort of marriage of convenience often left Vice Presidents out of the loop. Perhaps the most striking example is Harry Truman. He did not learn that the United States had developed an atomic bomb until the day after he was sworn in as President following President Roosevelt's death.

Most of our most recent Presidential candidates have sought running mates with whom they feel comfortable working closely. In naming Al Gore as his running mate, Bill Clinton chose someone who had not been a rival in the primaries and who largely replicated, rather than complemented, Clinton. Likewise, Dick Cheney brought along no constituency of voters for President Bush. Accordingly, Clinton and Bush respectively trusted Gore and Cheney.

The Good News and the Bad News for Sarah Palin

In passing over Hillary Clinton as a possible running mate, Barack Obama avoided the possibility of a Kennedy/Johnson-style relationship with his Vice President. Although Clinton has been publicly very supportive of Obama's candidacy since conceding the Democratic nomination to him, there is no doubt that she would have been a rival as well as an ally as Vice President. For all their differences, the Obama/Biden team is, in this respect, very similar to the Bush/Cheney team in 2000: A dynamic and likable outsider candidate on the top of the ticket, with a trusted Washington hand in the V.P. slot.

The current Republican ticket, by contrast, looks much more like the Bush I/Quayle team of 1988, except that Quayle had served in Congress for twelve years by the time he became Vice President. Even with that experience, there is little evidence that Quayle was a key adviser to the first President Bush. He was not, in other words, a bench coach.

The good news for Sarah Palin is that, in the event she becomes Vice President, serving as a President McCain's bench coach would provide her with a crash course in Presidential decision-making. The bad news is that given Palin's lack of proven experience or judgment, there is no reason to assume that McCain would want to turn to her for advice.

Michael C. Dorf is the Robert S. Stevens Professor of Law at Cornell University. He is the author of No Litmus Test: Law Versus Politics in the Twenty-First Century and he blogs at michaeldorf.org.