As I mentioned the other day, I’m reading Garrett Epps’ fun book called American Epic: Reading the U.S. Constitution. His discussion of the Twenty-Fifth Amendment got me thinking about two things.
First, the Senate’s exercise of the nuclear option last week presumably applies to presidential nominations of a vice-president when that office is vacant. The text of Section Two of the 25th Amendment says:
“Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress.”
Since the text specifically refers to a majority vote, one could argue that a filibuster of a vice-presidential nominee would be unconstitutional. (The advice-and-consent provision in Article Two, by contrast, only implies that a majority vote rule applies.) In any event, I highly doubt that the Senate will interpret its precedents to say that a vice-presidential nominee is subject to the sixty-vote threshold.
Second, far too little attention is paid to the constitutional crisis created by Spiro Agnew’s resignation in 1973. At that time, Democrats controlled both Houses of Congress and Richard Nixon was in deep trouble. If Nixon had resigned or been impeached and convicted before the VP vacancy was filled, the White House would have passed to Carl Albert, the Speaker of the House. Or Democrats in Congress could have insisted on a Democratic Vice-President.
Consider for a moment how awkward this was. Carl Albert: (1) could dictate how and when the House would vote on impeachment; (2) could dictate how and when the House would vote on the Vice-President; and (3) was next in line for the presidency. Part of the problem here is that the Succession Act of 1947 puts the Speaker of the House third in line, which is probably unconstitutional and is certainly a bad idea.
More broadly, vice-presidential vacancies fall within what I’m calling the “anti partisan principle.” If Democrats in 1973 (or in 1974, when Nelson Rockefeller was confirmed as Vice-President) had insisted on a Democratic Vice-President, that would have been seen as violating a basic norm that the VP and President should come from the same party. Or that the White House should not change parties without an election; a result also supported by the failed Johnson impeachment at a time when the vice-presidency was also vacant.