When Americans tune in to the dramatic conclusion of the judicial filibuster debate this week, they will see Vice President Richard Cheney wielding the gavel in the presiding officer's chair. And that's going to prompt one big obvious question: What's he doing there?
This is the opposite of a trivia question. The vice president's right to be present in that seat distills the essence of the entire controversy: Who's responsible for the choice of federal judges, the Senate or the White House?
Mr. Cheney's presence may well be the pivotal element in the entire struggle, because he will not only preside but also make a key procedural ruling. And if that ruling leads to a tie vote, he will vote to break the tie.
The ruling will determine how many votes it takes to cut off debate on a judicial nominee. The Republicans say 51, the Democrats say 60. Cheney has made clear he will rule for the Republicans. And when a vote is taken to uphold or overturn his ruling, he will break a tie in his favor if the Senate splits 50-50.
That will mean that the vice president, who has a ceremonial office off the Senate floor but who really works in the White House, will have done far more than convey the will of the executive branch into the lair of the legislative. He will have made it stick. When you consider that the issue at stake here is control over the repopulating of the judiciary — the third branch of government — you see how neat a trick this is.
But how, as David Byrne might have asked, does he do this? How does he get up there in the big chair in the first place?
The answer goes back to the Constitution. Way back in 1787, the framers looked at their creation of the office of vice president and realized it did not amount to much. It looked as if the No. 2 was going to check his mail, inquire as to the health of the president and go to lunch. So they struck on the idea of making him the president of the Senate, giving him the opportunity to contribute something in the workaday world.
So why do we see the vice president presiding so rarely? Why only on ceremonial occasions and moments of crisis? Why not daily?
In the current administration, it is possible that the vice president is actually too busy to preside over the Senate. He has been intimately involved in formulating foreign policy and many elements of domestic policy as well. He also serves as a major fundraiser and road warrior for his party. But through most of our history, Cheney' predecessors would have had plenty of time for the Senate — had the Senate been willing to have them.
It was a concern from the beginning that the vice president would have to govern a Senate in which he was not a member. But the original method of choosing the VP was supposed to overcome this problem. The VP was to be the second-place finisher in the Electoral College vote for president. Having come that close to being president, this runner-up would presumably have stature.
The first two vice presidents got away with this, perhaps because they were John Adams and Thomas Jefferson. But then came the disputed election of 1800, which eventually installed the controversial Aaron Burr as vice president. That led to one of the earliest constitutional amendments and the ticket approach to choosing presidents and vice presidents together. The choice of the VP soon fell to leaders of the burgeoning national parties, who were mostly interested in balancing the presidential ticket's regional appeal. The qualifications of the running mate seemed to matter little.
In fact, the vice presidents of the 1800s were a rather sorry lot. Many took the job late in life and in ill health and died in office. Several had financial scandals and one, Richard M. Johnson, serving under Martin Van Buren in the 1830s, left Washington for a year to run a tavern. All in all, the office went vacant for much of the time in 11 of the 25 presidential terms of the 19th century.
As a consequence, the Senate grew restive with its putative presiding officer. The vice president was often missing, and when he showed up he got minimal respect. Before long, the Senate was accustomed to having one of its own senior members take over through a constitutional office called Senate President Pro Tempore (roughly translated, it means boss for the time being). Basically, the senators got used to being their own boss. The power to preside passed through the Pro Tem to regular members tasked with the duty job day to day. In time, it came to be regarded as more drudgery than honor, and it was assigned primarily to junior members.
But all that changes on those special occasions when the president addresses a joint session (such as for the State of the Union) or when a major vote may end in a tie. Then the vice president is wheeled into place like a siege gun, the ultimate weapon in the Senate wars.