Legal Commentary

It apparently is a done deal that Hillary Clinton will be Barack Obama's Secretary of State--and that we will be hearing a lot from Doris Kearns Goodwin. One of the discussion points during the last couple weeks has been why Clinton would give up the chance to remain in the Senate for life and to amass institutional seniority and broad policy power (following the primaries, several people compared Clinton to Ted Kennedy after his failed 1980 presidential bid, when he settled in the Senate and emerged as a powerful liberal voice) to spend perhaps as few as 3-4 years as Secretary of State.

The assumption behind this discussion is that, having given up her Senate seat, Clinton will never get it (or the other New York seat) back. And this probably is true. Imagine a best-case scenario of Clinton serving as secretary of state for 1 1/2 Obama administrations, until 2014. Her seat, initially filled by an appointee and then a special election, will be filled for a full term in 2012, probably by a Democrat. Charles Schumer, the other New York Senator, will be up for re-election in 2010 and would serve until 2016. Since Clinton is highly unlikely to challenge a fellow Democrat for the seat (baring truly unforeseen circumstances), her Senate career is over.

This is illustrative of the disappearance of what Vik Amar in a 1996 article in Vanderbilt called "interbranch rotation," individuals moving directly from the Senate into the executive branch, especially cabinet posts, then back into the Senate soon after leaving the cabinet. Amar traces this disappearance to direct election of senators under the Seventeenth Amendment. Statistics from 1989 showed fifty people moving directly from the Senate to the cabinet in the first 200 years of the system, forty-one of them prior to the turn of the twentieth century. More significantly, of those 41, 13 returned to the Senate within three years of leaving the cabinet--all before the advent of direct senatorial election. One senator has made the Senate-Cabinet-Senate move since the Seventeenth Amendment was enacted--Philander Knox. He actually made the Cabinet-Senate-Cabinet-Senate move. He was McKinley's and Teddy Rooselvelt's Attorney General, was chosen for the Senate in 1904, left the Senate in 1909 to be Taft's Secretary of State, then was elected to the Senate in 1916. Notably, however, Knox's first period in the Senate (1904-09) came prior to the establishment of direct election; in other words, he left his AG position to be immediately appointed to a Senate seat and only had to run for popular election once. I cannot recall an instance since 1989, prior to Clinton, of a sitting Senator jumping to the cabinet.

Amar argues that the old scheme of legislative appointment allowed for side deals and bargains that made interbranch rotation possible and attractive as an option. A sitting senator could leave the Senate to serve in the cabinet for some time, with an under-the-table deal in place with the state legislature that, upon leaving the cabinet, he would be reappointed to the next Senate vacancy from the state. Amar then focuses on the implications for federalism and separation of powers, particularly how this affects Senate functions in areas such as treaty making and appointments, where the body works directly with the Executive.

But the loss of interbranch rotation has a different implication in defining who is likely to be a successful presidential candidate and how an individual can position herself for a run. Recall that Obama is the first person since Kennedy elected directly from the Senate with no significant executive experience. Rick Hills has argued that the recent spate of former governors elected (Bush II, Clinton, Reagan, and Carter, and going back farther, FDR) and recent candidates who have run based entirely on gubernatorial success (Huckabee, Romney, Palin in 2012) reflected a rebirth of federalism--experience at the state level seen as a benefit in a federal executive.

I tend to look at it through a separation of powers lens. There is a modern insistence (perhaps in the electorate, clearly in the media) that a presidential candidate have both executive experience and have served in some high elected office. Someone who has served in federal cabinet positions (or like Eisenhower been a military commander in time of war) but never held elective office would be constantly reminded that he never has been elected to anything. Most legislature-only candidates are constantly reminded that they only have been legislators (it did not hurt Obama because he was running against a fellow Senator), but it struck me as being an issue in 2004. The only positions that give a potential presidential candidate both electoral and executive experience are Vice President and Governor.

Historically, the Senate-Cabinet-Senate move might have been another way to get both credentials and set oneself up for a presidential run at the appropriate time (Knox ran for the GOP presidential nomination in 1908). But direct election removes (or makes incredibly risky) the option. Would a sitting Senator make the move to the Cabinet, knowing that the likelihood of returning to the Senate is virtually non-existence, on the remote (statistically and politically speaking) chance to be President? Such a person would have to be willing to gamble, old enough upon leaving the cabinet to be a viable presidential candidate, willing to leave elected public life if the move did not work, and, relatedly, old enough not to need to be in politics at the end.

I am guessing (this obviously is pure speculation) this is Clinton's political calculus for 2016. She ran for Senate to set herself up for the presidency; the direct route did not work, so maybe she tries a more circular path. If Obama is a successful President and the two are perceived as having a good working relationship, she could make herself a front-runner as the "heir" to Obama's presidency (it will not be Biden, who would be too old by that point). Clinton would be 69 in 2016, so old enough that she might, if unsuccessful, be willing to depart elected life. If this is her path, it will be interesting to see whether her now-significant executive experience (Secretary of State and First Lady cum adviser and counsel to the President) will be derogated because she never was elected to an executive position.