In 2000, SCOTUS was split 7-2 “over the question of reversing the Florida court, but the 5-4 split was over the termination of manual recounts”.
With Chief Justice in the hospital, if election lawsuits reach SCOTUS, even split 4-4 is quite likely. What’s gonna happen then?
A tie in the Supreme Court means that whatever the contested ruling was stands as decided by the lower court.
Asked and answered, with additional discussion.
Oh. Having read the title, I thought the subject of this thread might be a bit different… 
Then there’s this possibility:
With Congress in recess, Bush can appoint a new justice without worrying about confirmation until the election is safely over.
Well, yeah, if you want armed rebellion in the streets…
A recess appointment to the Supremes has never happened, and it would be the political equivalent of a thermonuclear device if Bush did so.
Even if Bush did so, the recess appointee would be obliged, ethically, to recuse him/herself from voting on whether Bush should be re-elected or not.
Honestly, if Bush did that an the appointee ignored ethics and voted in any such case, I really believe that there would be a really, really quick impeachment and trial.
And we would have a President Cheney…
Sua
Ethics? Recuse? This court? Do the words “duck hunting” or “Bush v. Gore” ring any bells? The court has provedn that it is perfectly willing to wade into areas that ethics forbid, and that it’s shameless in doing so.
Again, not a chance of impeachment & removal (and yes, I know impeachment isn’t removal…). Two-thirds Senate support for removal from office is required. Where, exactly, would the Democrats dig that up? And I don’t believe for a second that the Republican senators would convict the president for overstepping his authority–not if his doing so kept the GOP in control.
The only thing that might convince the GOP senators to remove Bush from office would be if he used an ACTUAL thermonuclear device on U.S. citizens.
That’s what I had thought, but the linked article says it’s happened 12 times, most recently with Earl Warren’s appointment by Eisenhower. (Or am I misreading the article?)
Re: the thread title.
At least Clarence Thomas is.
Not according to the Daily Show book.
In the spirit of Bricker’s Colorado’s Electoral Votes Should… ? thread, I’d like see what Bricker thinks of the possibility of Bush appointing a SC judge to rule on this election, providing it’s neccessary. He’s always right, so I’d like ot hear from him what will happen. And no, I’m not betting $100 on anything.
Sadly I don’t think the Repub senators would have the balls to impeach Bush if this were to happen. There would probably be some backlash in the midterm elections, but its unclear whether the possible loss of a few house and senate seats would be worth more or less then the presidency to the Repubs.
That said, I think the biggest obstacle to a recess apointment obviously calculated to put Bush in office is the Justices themselves. While a majority of them might want a second Bush term, I think that they will prioritize preserving the power and credibility of the Supreme Court above politics. Bush v. Gore was sketchy, but it would be nothing compared to the blatant manipulation of the Court that would be eviedent by a Bush recess apointment to ensure his own election. I think if this happened, at least some of the the Repub justices would refuse to play ball.
He could only do that if one of the Justices actually died. If one was in a hospital, on life-support, & brain-dead his/her seat still wouldn’t be considred vacant. The only way Bush could appoint a new Justice without one in the nine dying or resigning would be for contress to pass a law and the last President who tried to do that to further his own agenda (Roosevelt) failed (and his part had supermajorites in both houses!)
No, that’s not written in the law. Incapacity (and which justice could that not apply to) is enough.
‘Recess appointments’
Kmiec said even if Bush loses the election, he could replace Rehnquist before Kerry’s January 20 inauguration, at least on a temporary basis. The president has used “recess appointments,” made while Congress is out of session, to get around Senate opposition to some of his judicial selections and other agency choices.
Bush has used recess appointments to name two appeals court judges whose nominations had been blocked by Senate Democrats: Charles Pickering of Mississippi, a former chairman of the Mississippi Republican party and father of Rep. Chip Pickering, R-Mississippi, and William Pryor, the former attorney general of Alabama.
Such an appointment to the high court would last until January 2006.
Good post, but with one exception. A recess appointment is subject to Senate advise and consent at the next session of the Senate after it is made – and recess appointments of judges have been rejected in the past. They were deemed validly members of their court for the time between the effective date of the recess appointment and the date when they were rejected by the Senate.
So unless you’re privy to information we don’t have that Congress will not hold a session during the remainder of 2004 or all of 2005, your final statement is invalid.
2005, of course. Sorry.
Which law are you referring to? Before the President can make a recess appointment, there has to be a vacancy on the Court, as set out in Article II, s. 2 of the U.S. Constitution:
There’s no mention of incapacity in Article III, s. 1, setting out the tenure of federal judges:
'Good behaviour" is tied to the conduct of the judge, not to physical or mental infirmities.
Similarly, the impeachment clause in Article II, s. 4 makes it clear that impeachment is to remedy misconduct in office:
So, on what basis do you say that incapacity alone is sufficient for a recess appointment to the Supreme Court? And even if it is, what happens if Rehnquist gets better?
Note: I acknowledge that there is the early precedent of a federal judge who became mentally incompetent and was impeached as a way to remove him from office. (Name of the judge escapes me at the moment.) However, there was considerable uncertainy at the time whether this was an appropriate use of the impeachment power, since it hardly fell into the category of “high crimes and misdemeanors.” Ironically enough, Rehnquist criticises the use of the impeachment power for this purpose in his book Grand Inquests: The Historic Impeachments of Justice Samuel Chase and President Andrew Johnson.
Even if incapacity is the basis for impeachment (which is ultimately for the two Houses of Congress to decide), there would not be a vacancy for the President to fill until there had been impeachment in the House, trial and removal in the Senate.
??? It’s probably moot, since Rehnquist would almost certainly step down voluntarily if his health prevented him from being able to do his job for a long period of time. This is done frequently and would leave a spot on the court Bush could fill with a recess appointment.