What if all the SCOTUS justices needed replaced?

I haven’t been able to find an answer searching here, though it seems like an obvious question.

Let’s say terrorists bomb the Supreme Court, killing every justice. Is there anything in place to deal with the situation? Would the POTUS just begin nominating away? How would the country deal with being Supreme Court free? Would it be a boon for the party in control of the White House?

There are so many qualified judges of State Supreme Courts and Federal Courts of appeal, it wouldn’t take too long to find 9 nominees. But, yes, it would be a huge boon for the party in the White House. If such a catastrophe occurred, perhaps the President would work with the other party so that he or she would pick 5 and the other party could pick 4 (within reason)

While part of this is GQ, several of the questions require speculation and make this more suitable to Great Debates.

General Questions Moderator

George Washing had to nominate a full panel and seek confirmation.

Should disaster strike the sitting president would just have to submit nominations to the Senate seeking confirmation. There is no other mechanism.

If one party controlled the Senate and the presidency then it could mark a significant advantage by appointing justices likely to uphold that party’s reasoning. If control is split then perhaps there would be a more balanced court.

Thanks! The possibility of an “other mechanism” is what my GQ was about.

George never had to deal with Mitch McConnell.

Huge boon for ruling party. There’d be a conservative or liberal SCOTUS ultra-majority for decades to come.

There are provisions for continuity of government that include a line of succession to the presidency. So there should be little doubt about who is the president and gets to make a nomination.

And the Constitution provides that a majority of the Senate is enough for a quorum. If there was a mass casualty event and more than half the Senators died then there are procedures to hold special elections or have governors appointment replacements. Same as if only one passed away.

If absolutely everyone in the presidential line of succession and more than half the Senate got wiped out AND the entire Supreme Court then we would have a lot bigger issue to deal with than worrying about the Court.

This would to some extent, however, be checked by the fact that Supreme Court justices often don’t turn out to be as faithful to the line of the party that brought them to the Court as is thought initially. I could well imagine that a Court full of people who were appointed together (and are, presumably, relatively young) would develop its own dynamic and tendencies, rather than stay predictably within a given ideology.

The ranks of the Senate can be replenished with gubernatorial appointees very quickly. The Speaker of the House comes right after the Vice-President so the surviving representatives could elect a new Speaker who would then immediately be sworn into office as President and resign from Congress. Assuming “a Majority of each shall constitute a Quorum to do Business” in Article I, Section 5, Clause 1 refers only to members living & sworn into office and vacant seats don’t count then the solve surviving member would be able to elect himself Speaker and assume the Presidency.

Not necessarily, since the newly-constituted Supreme Court would need a core of already very experienced and well-regarded justices. Hence many of the new appointees are not going to be around for “decades to come”; they’re going to be people already in the latter part of their judicial careers.

The POTUS could prioritize political right-wingness or left-wingness over experience.

And even “very experienced and well-regarded justices” can be very partisan; imagine 9 Scalias or 9 Ginsburgs.

Justices have become increasingly likely to hew a partisan line. I expect that the general trend predates him, but every justice after the independent-minded Souter was closely vetted for ideology.

This is a separate but very interesting question–the speaker is indeed third in line of succession, but what would happen in case of a Cylon attack in which POTUS, VPOTUS, most of the Cabinet, AND the Speaker were killed? The Sec. of Education is next in line of succession, but the rump Congress elects a new speaker–constitutional crisis!

In the case of such a devastating attack the succession might not matter much. Clearly the Founders can’t have envisioned it–they never even intended the whole government to be together at at one time, as for the State of the Union address, which now necessitates one member of the cabinet to go into hiding JUST IN CASE.

Actually, if more than half of the Senate were to die, than the President (either the original or the senior survivor in the line of succession) would almost certainly be able to fill any open Supreme Court seats (as well as any other executive and judicial branch vacancies) with recess appointments, which allow the appointee to serve through the end of the next session of Congress without Senate approval (and serve permanently if the Senate approves them before the recess appointment expires).

Currently, the Senate prevents the President from making recess appointments by not actually going into recess, but rather holding pro forma sessions every three days when the Senate would otherwise be out of session, a practice approved by the Supreme Court in NLRB v. Noel Canning. In the mass disaster scenario where less than a quorum of the Senate survived, I have no doubt it would be considered to be in recess.

He could. The Senate might not play ball, though.

Either you have a Senate which refuses to consider any appointments at all (And it’s the wildest fantasy, isn’t it, to imagine that the Senate would publicly piss on the idea of discharging its consitutional functions? This would never happen in the real world, surely?) or the Senate is going to consider the appointments on their merits. If the former, there there will be no Supreme Court until the people throw out the Senators and elect some who are wiling to do the job. If the latter, then the President will want to nominate justices who don’t look like a panel of ideologically biddable lapdogs, because he’ll want to nominate justices likely to be confirmed.

Possibly. But however partisan the experienced and well-regarded justices may be, they’re not going to be around “for decades”, which was my point.

I think dead Senators qua not being Senators do not count towards the quorum. Theoretically the Senate would continue with only one Senator alive.

I don’t think so. The most senior member in the line of succession would become President and would not be replaced by the new SotH.

Tom Clancy covered this in Executive Orders. I don’t have the book to hand but IIRC the replacement justices were chosen at random.

Sorry, but you didn’t quite think this one through. The former Secretary of Education is now fully, 100% President, so whoever is elected Speaker simply takes the normal place in the line of succession.

Not sure about that, some turtles live longer than 200 years.