Elizabeth Warren Could Be a Ground-Breaking Vice-President in More Than One Way.
Obviously, there’s been great speculation about who Joe Biden would or should select as his running mate, limited really only by his proclamation that he would pick a woman to be the first female Vice-President. Certainly, it’s long past time. In fact, I don’t know if anyone’s noticed, but since COVID-19 has delayed the Democratic National Convention, the 2nd night of that event will take place on the centennial anniversary of ratification of the 19th Amendment, giving women the right to vote. It would be remarkable timing if the Convention ratified the nomination of a woman to be the Vice-President on that night.
If the Democratic ticket is successful in November, that running mate will make history — something American women will celebrate for a very long time. The list of contenders is fairly impressive, and at or near the top is Elizabeth Warren, who seems most capable of stepping into the role of President in the current crisis. Many would celebrate her selection for multiple reasons. Some suggest she has too many negatives, not least of which is the delicate balance in the Senate, as Democrats are hoping to take control of the Senate, with little or no margin of error.
If and when Warren resigns her Senate seat, she would trigger a period of approximately 5 months for Massachusetts Gov. Charlie Baker to schedule and hold a special election for Massachusetts voters to choose a permanent replacement for Warren in the U.S. Senate. In the meantime, depending on how she negotiates her exit, Baker would likely appoint a temporary replacement. Assuming that Baker would tab a fellow Republican, this could really handicap the early days of the Biden Administration.
Some have proposed that state law would allow Warren to start that clock very early, by resigning or filing a notice of intent to create a vacancy. This was considered by Harry Reid in advance of the 2016 convention, and a memo by Democratic counsel Marc Elias, correctly concluded that Warren can start the clock by submitting a letter of resignation setting a future date for her resignation. That’s under Massachusetts General Laws Part I Title VIII, Chapter 54, Section 140.
Warren could submit the letter to the Governor after the convention. For political reasons, she might choose to wait until after the election, first ensuring that the Democratic ticket is successful (though, she could, presumably, withdraw her resignation letter, if the ticket loses and Trump is re-elected). The premise is that this would limit Baker’s appointed Senator to less than 3 months in the Senate seat, as Warren would presumably vacate upon being sworn-in as Vice-President.
There’s good reason to wait that long to resign, because there may be a busy lame-duck session, and a lot could happen in the Senate on January 3rd. Firstly, the Senate would begin by choosing a new majority leader and committee leads. Her vote may be needed to guarantee a Democratic majority, if the Democrats are able to pick up the 4 seats they will need to hold the majority on that day. There may be an even bigger issue. It is not inconceivable that the general election could produce a 269–269 Electoral College deadlock.
In that circumstance, the House of Representatives would choose the next President by an arcane, undemocratic procedure that gives each state a vote. To gain the majority in that vote, Democrats would have to flip control in at least one seat in Pennsylvania, perhaps Michigan (depending on Rep. Justin Amash’s status), and Florida.
The U.S. Senate would choose the Vice-President, with each Senator getting a vote, so it would be crucial for Democrats to at least have 50 Senators (it’s unclear if VP Pence would be empowered to break a tie) on January 3rd to avoid Pence being chosen as the new Vice-President. Warren could even be in a position to vote on her own selection as the incoming Vice-President!
Even if all these hurdles are crossed and the Democratic ticket takes office as President and Vice-President on Jan. 20, losing Warren’s seat in those early days would be a big problem for the early days of a Biden Administration. Even without a filibuster (assuming that’s been eliminated in the early days of the next Congress before Sen. Warren exits her seat), the Senate cannot vote in early January on nominations by a President-in-waiting. They must wait until Biden takes office.
Given the ongoing coronavirus crisis and a likely ongoing Great Depression, a Biden White House would want to put their team in place quickly and start passing economic relief and recovery packages. Even under the best scenarios, it’s unlikely that Democrats could pick up enough Senate seats in November to have a functioning majority if Baker is able to put a Republican in the seat for 3 months.
Unfortunately, it seems there is a prohibition on serving as Senator and Vice-President. Article 1, Section 6, Clause 2 of the Constitution, often called the Ineligibility Clause, states that “no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.”
So, this creates a bit of a dilemma for Warren should she be chosen as Biden’s running mate, but one she could solve by kicking off the vacancy clock right after the convention, and preparing to withdraw her resignation if the ticket loses. The delay in the holding of the convention might make an announcement right after the event really good timing. Gov. Baker would then have to schedule the special election within a few days, either before or after, of the inauguration. He could set the election for the week before the Presidential inauguration, so that a winner would be declared before Jan. 20. It would allow for a seamless transition from Senator Warren to her elected successor, without any real need or even possibility of filling the seat with in interim appointment.
Warren could be the first person to resign her Senate seat in the morning, and be sworn in as Vice-President the same day. President Biden could even appoint her to a Cabinet position (Sec’y of the Treasury?) that same day (there’s no prohibition there, so long as Congress hasn’t voted to increase the salary), to which she could be confirmed by a vote by her successor in the Senate.
That successor? It would certainly help the Democrats if they had a strong candidate. Maybe someone who already has a Senate campaign up and running!?! There is a Massachusetts Democratic Senate primary already scheduled for Sept. 1, just 2 weeks after the national convention begins. Warren could issue her letter of planned resignation at or right after the convention. Then, Joe Kennedy could announce his intention to stand for that seat and his intention to withdraw from his challenge to Sen. Ed Markey.
It would make a lot of progressives happy to see Markey stay in his seat, and to have Warren just a heartbeat from the Presidency, and maybe in line to be the front-runner in 2024 for the Presidential nomination.
