# Rehnquist sick, SCOTUS hung? **URL:** \ **Category:** Great Debates\ **Created:** [October 28, 2004, 9:25pm UTC](https://boards.straightdope.com/t/rehnquist-sick-scotus-hung/271734 "2004-10-28T21:25:25Z")\ **Posts on this page:** 18\ **Page:** 1
**Author:** ![New\_Iskander](https://avatars.discourse-cdn.com/v4/letter/n/db5fbb/32.png) [@New\_Iskander](https://boards.straightdope.com/u/New_Iskander)\ **Post date:** [October 28, 2004, 9:25pm UTC](https://boards.straightdope.com/t/rehnquist-sick-scotus-hung/271734/1 "2004-10-28T21:25:25Z")
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](http://archives.cnn.com/2000/LAW/12/13/scotus.election.05/)”. With Chief Justice in the hospital, if election lawsuits reach SCOTUS, even split 4-4 is quite likely. What’s gonna happen then? ---
**Author:** ![Malodorous](https://avatars.discourse-cdn.com/v4/letter/m/e47774/32.png) [@Malodorous](https://boards.straightdope.com/u/Malodorous)\ **Post date:** [October 28, 2004, 9:29pm UTC](https://boards.straightdope.com/t/rehnquist-sick-scotus-hung/271734/2 "2004-10-28T21:29:40Z")
A tie in the Supreme Court means that whatever the contested ruling was stands as decided by the lower court. ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [October 28, 2004, 9:32pm UTC](https://boards.straightdope.com/t/rehnquist-sick-scotus-hung/271734/3 "2004-10-28T21:32:28Z")
[Asked and answered](http://boards.straightdope.com/sdmb/showthread.php?t=282842), with additional discussion. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [October 29, 2004, 5:08am UTC](https://boards.straightdope.com/t/rehnquist-sick-scotus-hung/271734/4 "2004-10-29T05:08:52Z")
Oh. Having read the title, I thought the subject of this thread might be a bit different… 🙂 ---
**Author:** ![The\_King\_of\_Soup](https://avatars.discourse-cdn.com/v4/letter/t/a87d85/32.png) [@The\_King\_of\_Soup](https://boards.straightdope.com/u/The_King_of_Soup)\ **Post date:** [October 29, 2004, 5:16am UTC](https://boards.straightdope.com/t/rehnquist-sick-scotus-hung/271734/5 "2004-10-29T05:16:47Z")
Then there’s this possibility: > **[I know what you did last recess.](https://slate.com/news-and-politics/2004/10/i-know-what-you-did-last-recess.html)** > > Supreme Court watchers tell us the 2004 election probably won't implode with Bush v. Gore-style litigation. I'm not inclined to listen—if only because... With Congress in recess, Bush can appoint a new justice without worrying about confirmation until the election is safely over. ---
**Author:** ![SuaSponte](https://avatars.discourse-cdn.com/v4/letter/s/67e7ee/32.png) [@SuaSponte](https://boards.straightdope.com/u/SuaSponte)\ **Post date:** [October 29, 2004, 2:03pm UTC](https://boards.straightdope.com/t/rehnquist-sick-scotus-hung/271734/6 "2004-10-29T14:03:59Z")
> [@The King of Soup](#): > > Then there’s this possibility: > > [http://www.slate.com/id/2108815/](http://www.slate.com/id/2108815/) > > 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… 1. A recess appointment to the Supremes has never happened, and it would be the political equivalent of a thermonuclear device if Bush did so. 2. 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 ---
**Author:** ![toadspittle](https://avatars.discourse-cdn.com/v4/letter/t/c0e974/32.png) [@toadspittle](https://boards.straightdope.com/u/toadspittle)\ **Post date:** [October 29, 2004, 2:38pm UTC](https://boards.straightdope.com/t/rehnquist-sick-scotus-hung/271734/7 "2004-10-29T14:38:00Z")
> [@SuaSponte](#): > > 1. 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. 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. > [@](#): > > 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. 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. > [@](#): > > 1. A recess appointment to the Supremes has never happened, and it would be the political equivalent of a thermonuclear device if Bush did so. 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. ---
**Author:** ![Spoke](https://avatars.discourse-cdn.com/v4/letter/s/a88e57/32.png) [@Spoke](https://boards.straightdope.com/u/Spoke)\ **Post date:** [October 29, 2004, 2:44pm UTC](https://boards.straightdope.com/t/rehnquist-sick-scotus-hung/271734/8 "2004-10-29T14:44:02Z")
> [@SuaSponte](#): > > A recess appointment to the Supremes has never happened 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?) ---
**Author:** ![cmkeller](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/cmkeller/32/118_2.png) [@cmkeller](https://boards.straightdope.com/u/cmkeller)\ **Post date:** [October 29, 2004, 3:18pm UTC](https://boards.straightdope.com/t/rehnquist-sick-scotus-hung/271734/9 "2004-10-29T15:18:05Z")
Re: the thread title. At least Clarence Thomas is. ---
**Author:** ![Kaspar\_Hauser](https://avatars.discourse-cdn.com/v4/letter/k/b3f665/32.png) [@Kaspar\_Hauser](https://boards.straightdope.com/u/Kaspar_Hauser)\ **Post date:** [October 29, 2004, 3:24pm UTC](https://boards.straightdope.com/t/rehnquist-sick-scotus-hung/271734/10 "2004-10-29T15:24:15Z")
Not according to the Daily Show book. ---
**Author:** ![NotMrKnowItAll](https://avatars.discourse-cdn.com/v4/letter/n/6bbea6/32.png) [@NotMrKnowItAll](https://boards.straightdope.com/u/NotMrKnowItAll)\ **Post date:** [October 29, 2004, 3:55pm UTC](https://boards.straightdope.com/t/rehnquist-sick-scotus-hung/271734/11 "2004-10-29T15:55:06Z")
In the spirit of **Bricker’s** [Colorado’s Electoral Votes Should… ?](http://boards.straightdope.com/sdmb/showthread.php?t=283259) 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. ---
**Author:** ![Malodorous](https://avatars.discourse-cdn.com/v4/letter/m/e47774/32.png) [@Malodorous](https://boards.straightdope.com/u/Malodorous)\ **Post date:** [October 29, 2004, 3:59pm UTC](https://boards.straightdope.com/t/rehnquist-sick-scotus-hung/271734/12 "2004-10-29T15:59:08Z")
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. ---
**Author:** ![Hadrian0117](https://avatars.discourse-cdn.com/v4/letter/h/3d9bf3/32.png) [@Hadrian0117](https://boards.straightdope.com/u/Hadrian0117)\ **Post date:** [October 29, 2004, 11:49pm UTC](https://boards.straightdope.com/t/rehnquist-sick-scotus-hung/271734/13 "2004-10-29T23:49:52Z")
> [@The King of Soup](#): > > Then there’s this possibility: > > [http://www.slate.com/id/2108815/](http://www.slate.com/id/2108815/) > > With Congress in recess, Bush can appoint a new justice without worrying about confirmation until the election is safely over. 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!) ---
**Author:** ![The\_King\_of\_Soup](https://avatars.discourse-cdn.com/v4/letter/t/a87d85/32.png) [@The\_King\_of\_Soup](https://boards.straightdope.com/u/The_King_of_Soup)\ **Post date:** [October 30, 2004, 5:36am UTC](https://boards.straightdope.com/t/rehnquist-sick-scotus-hung/271734/14 "2004-10-30T05:36:10Z")
> [@Hadrian0117](#): > > 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. ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [October 30, 2004, 2:50pm UTC](https://boards.straightdope.com/t/rehnquist-sick-scotus-hung/271734/15 "2004-10-30T14:50:03Z")
> [@The King of Soup](#): > > 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. ---
**Author:** ![The\_King\_of\_Soup](https://avatars.discourse-cdn.com/v4/letter/t/a87d85/32.png) [@The\_King\_of\_Soup](https://boards.straightdope.com/u/The_King_of_Soup)\ **Post date:** [October 30, 2004, 3:36pm UTC](https://boards.straightdope.com/t/rehnquist-sick-scotus-hung/271734/16 "2004-10-30T15:36:14Z")
2005, of course. Sorry. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [October 30, 2004, 5:43pm UTC](https://boards.straightdope.com/t/rehnquist-sick-scotus-hung/271734/17 "2004-10-30T17:43:48Z")
> [@The King of Soup](#): > > No, that’s not written in the law. Incapacity (and which justice could _that_ not apply to) is enough. 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](http://caselaw.lp.findlaw.com/data/constitution/article02/): > [@](#): > > The President shall have Power to fill up all **Vacancies that may happen** during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session. There’s no mention of incapacity in [Article III, s. 1](http://caselaw.lp.findlaw.com/data/constitution/article03/), setting out the tenure of federal judges: > [@](#): > > The Judges, both of the supreme and inferior Courts, **shall hold their Offices during good Behaviour** , and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office. '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](http://caselaw.lp.findlaw.com/data/constitution/article02/) makes it clear that impeachment is to remedy misconduct in office: > [@](#): > > The President, Vice President and all Civil Officers of the United States, shall be removed from Office on Impeachment for and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors. 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](http://www.amazon.com/exec/obidos/tg/detail/-/0688171710/104-7844529-3259906?v=glance). 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. ---
**Author:** ![Malodorous](https://avatars.discourse-cdn.com/v4/letter/m/e47774/32.png) [@Malodorous](https://boards.straightdope.com/u/Malodorous)\ **Post date:** [October 30, 2004, 5:55pm UTC](https://boards.straightdope.com/t/rehnquist-sick-scotus-hung/271734/18 "2004-10-30T17:55:43Z")
> [@Northern Piper](#): > > 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.