How to Choose an Understudy: Reflections on Soon-to-be-Governor Kathy Hochul

 by Michael C. Dorf

New York Governor Andrew Cuomo's resignation is not yet effective. In announcing it, Cuomo said it would take effect in two weeks. Why not immediately? It's not entirely clear. Are there official papers Cuomo wants to pack up (or shred!)? The official explanation is that, given the pandemic, the additional time is needed to ensure a smooth transition. Maybe. The best explanation might be prosaic. Apparently Cuomo has no home other than the Governor's mansion in Albany. Maybe he needs the time to find an apartment.

In any event, pretty soon Kathy Hochul, currently the Lieutenant Governor, will become Governor. That change raises a number of interesting questions about the costs and benefits of having an official understudy (whether it is the lieutenant governor of a state or the national Vice President) who is closely or distantly connected to the chief executive. In this essay, I'll discuss state and national offices somewhat interchangeably, even though I realize that there may be subtle distinctions.

For much of U.S. history, the Vice Presidency was, in John Nance Garner III's memorable phrase, "not worth a bucket of warm piss" (often sanitized as "spit"). The modern era of the Vice Presidency dates roughly to the Carter Administration, when Walter Mondale was treated more as a junior partner than simply as someone who ran on the ticket in the hope of adding some electoral appeal but was then given almost entirely ceremonial duties. One tangible indication of the change is that Mondale was the first Vice President to have an office in the White House, as opposed to solely in the Old Executive Office Building (now officially called the Eisenhower Executive Office Building).

By most accounts, George H.W. Bush, Al Gore, Dick Cheney, and Joe Biden worked in the Mondale/junior partner mode (with Cheney sometimes seeming to an at-least-equal partner to President George W. Bush). From what I can tell, it appears that Dan Quayle was less of a modern Vice President. I would probably put Mike Pence on the Mondale/junior-partner list, except that the Trump administration was so chaotic in its decision making process that it's hard to know exactly what role anyone played. It's still early in the Biden administration, but so far it appears that Kamala Harris is playing the Mondale/junior-partner role.

States are sufficiently diverse that I hesitate to generalize. Having lived nearly all of my life in New York State, I can say that here the Lieutenant Governor's role is generally more like warm piss than junior partner. The fact that millions of New Yorkers have been Googling "Kathy Hochul" in the last few days is a pretty good indication of that fact. That's not to take anything away from the people who have served as Lieutenant Governors, however. As I'll explain, there is at least one key way in which the warm-piss model is superior to the junior-partner model.

The sort of person who is qualified to be Lieutenant Governor or Vice President will generally have qualifications roughly comparable to those of someone qualified for the top spot, because they may have to assume the role of Governor or President. That's why Dan Quayle and Sarah Palin were such odd running-mate choices by the first President Bush and Senator/Presidential candidate John McCain (although Quayle had conventional qualifications on paper). The fact that they seemed unready for the job probably cost Bush and McCain with voters, at least a little. And for that reason, most VPs and Lieutenant Governors will have a background and qualifications that are similar to those of people who get the top position.

That fact, in turn, explains the attraction of the junior-partner model. If your Vice President is someone who could be President or your Lieutenant Governor is qualified to be Governor, why not take advantage of their talents? And if you want someone with the requisite qualifications to serve as your understudy--rather than hold out for a "better" job in the administration, like Secretary of State--then you might need to sweeten the deal by offering the VP or LG the opportunity to wield real influence and power within the administration. If you're George W. Bush and you have Dick Cheney as your VP or Barack Obama and you have Joe Biden, you don't want them simply going to funerals and greeting visiting middle school students; you want them negotiating with Congress and foreign leaders.

Moreover, the Mondale/junior-partner model has another advantage going for it. In the event that the President or Governor leaves office (through illness, death, or otherwise), a junior-partner understudy will be ready to take the reins from day one and, in virtue of having played a substantial role in shaping the now-departed leader's policies, will be likely to want to continue them.

Yet if there are powerful benefits of the junior-partner model, there is also a substantial risk of taint in the event that the top dog is displaced due to scandal. By most accounts, Hochul played a minor role in Cuomo's administration and was not close to him. That might have cost her during her time as Lieutenant Governor, but it will serve her well as Governor. She will be able to assume office without Cuomo's baggage. (It also helps that she's a woman, given the gendered nature of Cuomo's abuse.)

To be sure, even a closely aligned junior-partner second-in-command might escape the taint of a purely personal scandal. Had Bill Clinton resigned during the Lewinsky Affair, Al Gore would not have had to go with him, because Gore was not implicated in Clinton's sex-driven abuse of power. But many scandals that lead to investigation or ouster of the chief executive will reach deep into the administration. During Reagan's second term, Iran-Contra got close to both the President and to then-VP George H.W. Bush. Although Mike Pence ultimately (and patriotically) resisted Trump's most insidious treachery, he was likely in the room and had knowledge of Trump's lesser high crimes and misdemeanors. Had it been possible to remove Trump during his term, depending on the reason and the evidence, Pence might have been at least somewhat tainted.

My analysis suggests that a case could be made for a VP or LG who is largely frozen out of an administration so that they can be untainted if needed. However, we're not likely to see that very often because the sort of Governor or President who is sufficiently concerned ex ante about ensuring that their number two would be able to govern without taint is likely to have the sort of character that would prevent an administration-ending scandal in the first place. (Cuomo is an exception, apparently, although it seems that he chose Huchul to appeal to upstate moderates, not so that he would have an independent person to take over).

That said, I can think of exceptions. In NYS, primary voters use separate lines to choose a candidate for Governor and Lieutenant Governor. Although as a practical matter the gubernatorial candidate and the LG candidate run as a ticket, voters can still split. For example, running for the nomination as a de facto ticket in 2014, Cuomo and Hochul both won, but Cuomo's margin over his primary challenger (law professor Zephyr Teachout) was smaller than Hochul's margin over hers (law professor Tim Wu). One can imagine circumstances in which the voters select a Governor and Lieutenant Governor who come from different wings of the same party--much in the way that Presidential candidates sometimes pick running mates who are different from them to appeal to another constituency.

So there are forces other than idealism that will lead to a second banana who is distant from the top banana in various respects. Even so, if the second banana is then given substantial responsibility, they will come to be identified with the administration. Reagan and the first Bush are a good example. Despite critiquing Reagan as touting "voodoo economics" in the primary, Bush served much in the Mondale mode. The same appears to be happening with Biden and Harris, whose most memorable moment as a presidential candidate was when she called Biden out on his record on busing.

None of that applies to Hochul, however. She will have the opportunity to govern as her own woman. At least for a few months. Then she'll have to start thinking about the next election, where she may face a formidable primary candidate--Attorney General Letitia James--who is more responsible than anyone besides Andrew Cuomo himself for Hochul's ascendancy to the governorship.