There are several good reasons why presumptive Democratic presidential nominee Hillary Clinton might want to choose Sen. Elizabeth Warren (D-MA) as her running mate. Warren is a forceful critic of Republican candidate Donald Trump. As the architect of the Consumer Financial Protection Bureau, Warren helps insulate Clinton from charges that she is too close to Wall Street. And Warren is popular with many liberal Democrats that Clinton may want to build bridges towards in the wake of a bruising primary against Sen. Bernie Sanders.
There are, however, two very good reasons not to choose Warren as the party’s vice presidential nominee. Massachusetts currently has a Republican governor, who would be able to name a temporary replacement to fill Warren’s senate seat if the Massachusetts lawmaker became vice president. And, even though this seat would eventually be filled by the winner of a special election, there’s no certainty that Massachusetts voters will choose another Democrat to fill Warren’s seat. Just ask former Sen. Scott Brown (R-MA).
Though there’s no way to eliminate these downsides entirely, Senate Democratic Leader Harry Reid (D-NV) is reportedly exploring ways to mitigate them. According to the Boston Globe, Reid commissioned election lawyer Mark Elias — who is also general counsel to the Clinton campaign — to explore how to work within Massachusetts law to limit the number of days Republican Gov. Charlie Baker’s appointment would be able to serve in the Senate.
Massachusetts law requires a special election to be held 145 to 160 days after a vacancy opens, and the governor’s appointee gets to serve in the interim. The Globe reports, however, that “Reid’s team has identified a portion of the law that allows an officeholder to start the special election clock by filing a resignation letter, but also announcing an intention to vacate the seat at a later date.” In effect, Warren could remain a member of the Senate until the moment she is sworn in as vice president, should she be elected to that position, but the special election clock would start ticking as soon as she filed a letter announcing her intention to vacate the seat in the future.
This year’s presidential election will be held on November 8th, but the new vice president is not sworn in until January 20th. Thus, if Vice President-elect Warren were to celebrate victory by immediately filing her resignation letter, she could potentially knock 73 days off of the time Baker’s appointment would serve.
It’s a high stakes gambit, with control of both the Senate and the Supreme Court potentially hinging in the balance. Senate Majority Leader Mitch McConnell (R-KY) isn’t simply refusing to allow a vote on President Obama’s nominee to fill the current vacancy on the Supreme Court, Chief Judge Merrick Garland, McConnell’s also suggested that he may not allow the next president to fill that seat either.
Of course, the GOP leader’s ability to hold that seat open depends entirely on whether the Party of Obama or the Party of Trump controls the Senate in 2017. If Democrats perform well enough in November to hold a majority in the Senate with or without Elizabeth Warren, then it is likely that anyone Hillary Clinton would nominate to the Supreme Court will be confirmed. It is possible, however, that the two parties will be evenly divided in the Senate after the next election, with whoever controls the Warren seat claiming the majority.
Should Warren be elected vice president under these circumstances, however, there is an unusual gambit Democrats could use to place a Democratic president’s nominee on the Supreme Court. The 20th Amendment provides that “the terms of the President and Vice President shall end at noon on the 20th day of January,” but “the terms of Senators and Representatives” end “at noon on the 3d day of January.” Thus, there will be a 17 day period when Barack Obama will still be president, and Elizabeth Warren could potentially be both a sitting U.S. senator and vice president-elect.
If the Senate were evenly divided during this period, outgoing Vice President Joe Biden’s tie-breaking vote would give Democrats an effective majority during these 17 days — and Obama would retain the power to keep Garland’s nomination before the Senate. Assuming no defections from within the Democratic caucus, the Senate could confirm Garland in the final days of Obama’s presidency.
That may not be an ideal outcome for liberal Democrats — Garland is older than most Supreme Court nominees and is widely viewed as a moderate — but it could be a much better outcome for Democrats than rolling the dice on who gets the Warren seat to determine if the vacancy on the Supreme Court is filled.