Older presidential candidates should make V.P. choices now

Gordon L. Weil

The caucuses and primaries are on the way. Votes now matter more than debate ratings.

The seriousness of the moment became more evident when the New York Times announced its endorsements for the Democratic nomination. It supports two candidates, both senators, Amy Klobuchar and Elizabeth Warren.

Its endorsement editorial is unusually frank about what it sees as one drawback of a couple of others.

On Bernie Sanders: "Mr. Sanders would be 79 when he assumed office, and after an October heart attack, his health is a serious concern."

On Joe Biden: "Mr. Biden is 77. It is time for him to pass the torch to a new generation of political leaders."

The Times editorial covers only Democrats, and did not mention that Donald Trump is 73.

The oldest U.S. president at the end of his term was Ronald Reagan, who was almost 78. Sanders and Biden are now both older than Reagan when he left the White House.

Older people remain in reasonably good health well into old age. But aging takes a toll, reducing and changing some abilities and raising the prospect of the onset of serious illness.

Many people seek to avoid any hint of age discrimination, so they choose to ignore the possible impact of aging on a candidate's ability to carry out the heavy duties of president and commander-in-chief.

But, just as a voter might conclude that a candidate was too young to have gained enough experience to take on the presidency, a voter might take a candidate's advanced age into account. The relationship between age and health makes that a reasonable concern.

Presidents Woodrow Wilson and Reagan were considered to have lost some of their abilities due to declining health by the end of their terms in office. Four other presidents died in office for health-related reasons. These were six of the 44 people who served as president, a high enough percentage to cause people to take age into account.

It has become traditional for a major party's presidential nominee to pick a running mate only after having locked up the nomination. The assumption may be that the nominee does not want the vice presidential choice to raise any questions about the nominee's judgment before it is too late to reverse the decision.

Both Democratic Sen. George McGovern and Republican Sen. John McCain, whose choices for running mate caused them almost immediate complications, might have benefited from having made their selections well before the national conventions.

Amid all the campaign promises, the nominee's decision on a running mate is possibly the only binding, public action affecting the presidency they can make during a campaign. That decision may say more about the person than all of the promises, many of which will be impossible to keep.

As I wrote several months ago, those seeking a party's nomination should announce their running mates well in advance.

The media should ask Sanders and Biden about their running mates before people start voting in the caucuses and primaries. If voters had some reassurance that they knew who might be president if a problem arose, it could make them more comfortable voting for an older candidate.

That probably won't happen because the media is so accustomed to waiting until just before the conventions. If Sanders or Biden did not wait to be asked and took the initiative, it could attract favorable attention.

Of course, they may worry that naming a running mate might call attention to their age. Both Democrats are vigorous, so they probably don't want voters to focus on their many decades.

Without the early selection of a running mate, Sanders might improve the chances for Warren. Given the similarity of their views, liberal voters may conclude that it is safer to support Warren. Never has catching a bad cold been more of a threat to the success of leading candidate.

As for Trump, voters and the media assume he will continue with Mike Pence as his running mate. In 2016, Pence served his purpose in reassuring voters of the ticket's political experience. Trump is certainly capable of coming up with a new name even as late as the GOP Convention in August.

A late selection by Trump would get more media attention than sticking with Pence. The age insurance provided by the Vice President might not be lost, though Trump may think he doesn't need it.

In the end, both the candidates and the voters would benefit by an announcement now of a running mate at least by the three oldest candidates – Sanders, Biden and Trump.

Governor makes rare move in executive-legislative battles

Gordon L. Weil

The tug of war between the executive and legislative branches keeps taking new turns.

In theory, the legislative branch is supposed to set policy through passing laws. Legislators can submit proposals for consideration and many of their bills are adopted. The executive branch is assigned the task of carrying out the laws.

In fact, the executive has become the principal source of legislative proposals. Presidents and governors serve up a package of proposals to legislatures every year or two. Lawmakers have become dependent on these bills and expect to focus much of their effort on reacting to them.

Once laws are passed and given the complexity of issues, the executive often is assigned responsibility of adopting detailed rules to apply broad legislation. Rulemaking has become a major form of legislating

The result has been that the development of much of new legislation has passed from the legislative branch to the executive. With that shift has gone much of the power of Congress.

This transfer of legislative power may explain why President Trump apparently has seen Congress as his board of directors, whose job is to review and approve his proposals for U.S.A., Inc. Surely, Congress is not a branch of government with equal or greater weight than the executive, in his view.

At the state level, some have developed “strong” governor systems and others “weak” governor systems. The decision is made by the state constitution, the legislative body or by custom over the years.

In Wisconsin, for example, the incumbent Republican governor lost in an upset to a Democrat. Before he left office, the GOP legislature adopted and he signed new laws drastically reducing the governor's powers. In effect, they turned a strong governor position into a weak one as a way of undermining the winner..

The new governor challenged some of those laws in court and lost. The complete reversal of the historic relationship set back the principle of checks and balances.

An unusual twist on the governor-legislature relationship has just occurred in Maine.

In her State of the State speech last week, Gov. Mills openly worried that foreign corporations were operating electric utilities to put their profits before consumers' interests. She expressed concern that utility regulation might not be doing enough to ensure that “utilities are accountable and answerable to the people of Maine.”

She said to the Legislature, “I ask your guidance and your help in making sure that these foreign corporations...are answerable to Maine, not Spain or some other foreign country.” She was referring to the foreign owners of CMP (Spain) and Emera Maine (Canada).

An almost immediate reaction from some in the media was that she had failed to provide a proposal to the Legislature. Action would have to await more specifics from her.

Here was the odd situation of the governor asking the Legislature for “guidance,” just as constitutions expect, and finding herself faced with a reaction that she should have guided the lawmakers.

There is a menu of options from which policy makers might choose, and the governor seems to be open to considering a choice by the Legislature.

It could adopt the bill proposed by Rep. Seth Berry, which calls for a non-profit utility, owned by its customers, to buy out the two foreign corporations. That would exactly meet her requirements.

It could send Berry's bill to a referendum this year to let the people decide to acquire the system from the two utilities.

It could instruct the Public Utilities Commission to deny any profit whatsoever to investors in those utilities if their management failed to provide reliability at a specified standard and subject to a cap on rates set by law.

Or, it could tell the governor that she exaggerates the problem, and nothing needs to be done.

Her request opens the door to a bipartisan answer, if the two parties can agree. Certainly, it implies they ought to try.

If the Legislature in unable to respond favorably and cannot give the governor the guidance she requests, she must turn the tables and guide the lawmaking. With a Democratic majority in both houses at least until the end of the year, she would have an incentive to take clear action with the support of her party.

With her strong statement of concern about the utilities, Mills has set government on this path. She has put herself in the position that she cannot walk away from the issue. The Legislature has been invited to address it through an effort between legislative and executive branches and between Democrats and Republicans.

This situation goes beyond the future of electric utilities in Maine. It marks an unusual opportunity for the effective operation of American government as it was intended.

Dems want to 'pack' Supreme Court; here's a better idea

Gordon L. Weil

At least five of the Democratic presidential candidates, including Elizabeth Warren and Amy Klobuchar, worry a Democratic president would face a hostile Supreme Court and want to add more justices to the Court.

Senate Majority Leader Mitch McConnell has used his GOP caucus to block judicial nominations by President Obama and open the floodgates for President Trump's conservative choices for lifetime appointments.

The GOP majority sets the Senate rules and has used them to deny Obama's nominations. Then, the GOP approved almost all Trump nominees without any serious review.

Trump likes to flaunt his claimed presidential superiority over Obama, saying his predecessor lacked the skill to get his nominees confirmed, while Trump mastered the process. He ignores McConnell's role.

Republicans want to continue conservative control even if the GOP loses control of Congress and the presidency. This is not new. The Federalists, the party of George Washington, dominated the Supreme Court for decades after that party permanently lost power.

Democrats in power could face an avalanche of lawsuits from opponents against the laws they adopted. The conservatives would hope for a like-minded Supreme Court majority to overturn the new laws.

President Franklin D. Roosevelt faced that situation in the 1930s. Only his threat to add more justices to the Court and his stunning 1936 victory caused a Court reversal, remembered by the saying "a switch in time saves nine."

Democratic candidates now advocate enlarging the Court, if and when the Democrats control the federal government. In that way, the Democrats could frustrate the McConnell strategy by overwhelming the conservative justices by an influx of more liberal justices.

The size of the Supreme Court is set by Congress, so the size of the Court might readily be changed. This has been done. For example, during the 1860s, the size of Court changed from nine to ten and then down to seven before returning to nine. The changes were political.

Roosevelt's so-called "Court packing" plan was not popular, even with Democrats. It seemed to drag a supposedly neutral court into the politics of the day. Would it be different today?

The Court back then was obviously opposed to Roosevelt's New Deal. But many saw the split as a philosophical difference, not partisan warfare.

But since then, the Court literally selected a Republican president in 2000. One justice later admitted her partisanship in joining in the 5-4 majority. Justices are appointed from a list provided by a conservative organization that has never supported a Democrat. They are expected to reverse Democratic-passed laws.

Some Democrats, including Joe Biden and Bernie Sanders, oppose adding justices. They may worry about launching an ever-escalating number of appointments used to achieve partisan advantage.

If there's a sense something short of "packing" is needed, there is a viable alternative. Congress and the president could agree to the appointment of "temporary" justices. Even though federal judges are appointed for life, it's possible.

That has been done more than once, the last in 2013, when a law created 17 temporary federal judges. These are lifetime appointments, added to the existing, "permanent" judges on district or appeals courts. When a vacancy occurs among the permanent judges, no new appointment is made and the "temporary" judge fills the slot.

Using this approach, the Democrats could increase the size of the Supreme Court temporarily. They could ensure the conservative and partisan packing done by McConnell would be replaced by a process allowing for more balance or even a tilt to the liberal side.

Suppose Obama had proposed to fill the last vacancy with Republican favorite Brett Kavanaugh in the permanent slot and Merrick Garland, his choice who was completely blocked by McConnell, to a temporary position. McConnell might have turned the proposal down, but it would have highlighted the issue.

Such a move by Obama would also have set the stage for the president who succeeds Trump. And the possibility alone could influence Republican senators even before then.

The proposal could be tied to the judicial workload, one of the driving forces behind the "temporary" judges. The nine justices now only hand down about 70 decisions a year, far fewer than in the past. More justices could allow it to avoid leaving major national decisions to lower courts and to produce faster results.

The Democratic candidates should focus more on the Supreme Court. Among the decisions made by any president, appointments to the Court may have the longest-lasting effect.

"Temporary" justices, nothing new in U.S. history, could be the way to divert the Court from its current course toward becoming a partisan legislative body.