Why not a justice?

[cmkeller]

There was a recent thread in which someone listed the full line of presidential succession. In looking at it, something struck me…why isn’t a Supreme Court Justice anywhere in the line of succession?

It can’t be for the sake of separation of powers between the branches of government, because there are legislators in the line of succession. It can’t be because they’re not elected officials, because neither are the Cabinet members in the line of succession.

Any guesses?

[zev_steinhardt]

**
There was a recent thread in which someone listed the full line of presidential succession. In looking at it, something struck me…why isn’t a Supreme Court Justice anywhere in the line of succession?

It can’t be for the sake of separation of powers between the branches of government, because there are legislators in the line of succession. It can’t be because they’re not elected officials, because neither are the Cabinet members in the line of succession.

Any guesses?
**

True. However, Cabinet members are sort of elected by proxy. If we want to get rid of a cabinet, we can always dump the president. With a SCJ, that’s not possible.

Zev Steinhardt

[Boris_B]

That’s a good question. I’d never thought of it that way. I think Zev has (part of) the answer. The person to succeed to the Presidency should have some “democratic credentials”, like being elected or appointed by someone who is elected. Of course, Justices are appointed by the President, but they might have been appointed a really long time ago, which makes their credentials pretty old and dusty. Cabinet members have much fresher credentials, having been appointed by the sitting President, and being susceptible to sacking if they mess up.

Another thing is, having been appointed a long time ago, a lot of Justices are getting on in years. They might be fit enough to serve on the bench, but the Presidency is a physically tougher job. Of course, rickety old folks could be appointed to the Cabinet, or gasp become President pro tempore of the Senate, but they could also be shuffled out of the pile should they become too old and rickety.

Which raises an interesting point: the Senate’s traditional process for selecting its President runs directly counter to the goal of having a fit person in the job. The President pro tem is traditionally the member of the majority party who has been in the Senate longest. Hence President Thurmond. So, when I get elected to the U.S. Senate, I’m going to work to change this tradition.

[bibliophage]

The constitution gives Congress the power to legislate the line of succession beyond Vice President. As far as I know, Congress took no action on this question until 1947. By that time the apolitical nature of the Supreme Court (or at least the appearance of being apolitical) was so ingrained that I suspect the justices themselves would have objected to being made part of the line of succession.

But apart from the line of succession, there is also a diplomatic protocol that puts the Chief Justice of the United States above most of the people in the line of succession. I believe he has precedence over everyone in the federal government except the President and Vice President (and possibly the Speaker of the House of Representatives). These 4 offices, along with President pro tempore of the Senate are the only individual offices mentioned by name in the Constitution. If I recall correctly, Chief Justice Berger once entertained some foreign dignitary in his capacity of highest-ranking officer of the federal government who was available. I don’t remember why the Prez and VP weren’t availible.

[bibliophage]

The speaker of the house does outrank the chief justice in protocol. From Encyclopedia Americana

At state occasions the chief justice is accorded the fourth rank of precedence, after the president, the vice president, and the speaker of the House of Representative, in recognition of his role as the symbolic head of the federal judicary.

Still looking for the reference to Warren Berger as diplomat.

[RealityChuck]

As far as I know, Congress took no action on this question until 1947.

There were various succession laws before that. See http://209.52.189.2/article.cfm/presidents_and_first_ladies/33926.

Briefly, the original law had President Pro Tempore of the Senate third in line. When Andrew Johnson was impeached, that created an obvious conflict of interest, since the President Pro Tempore voted on removing the president from office.

In 1886, the Cabinet was put into the line of succession to prevent that sort of conflict.

A third act was passed in 1947, putting the Speaker of the House and President Pro Tempore of the Senate ahead of the cabinet. I suppose the idea was to put in an elected official before an appointed one. The Speaker can vote to impeach, but he’s not involved in removing the president, so, though there’s a conflict, it’s not as direct.

Finally, the 25th Amendment created a method to appoint a Vice President if the post is vacant.

[bibliophage]

Thanks for the link, RealityChuck. I was looking for something like that.

I found the reference about the Chief Justice that I was looking for, but it doesn’t say exactly what I remembered it to. From The Brethren: Inside the Supreme Court By Bob Woodward and Scott Armstrong

Beginning in his own small office Burger remarked that it was smaller than his old one at the Court of Appeals. More distressing was the absence of an adjoining office that could be used as a workroom. As Chief Justice he was third in protocol as official representative of the United States government after the President and Vice-President. He would receive ambassadors and visiting dignitaries. “How can I entertain heads of state?” he asked, pointing to his relatively cramped quarters. It would never do. What would his guests think?

I don’t know how to square this quotation that says the Chief Justice is third with the Encyclopedia Americana quotation saying he’s fourth.

[aseymayo]

Well, say we decided to change the succession to include the Chief Justice, then through some fantastic circumstances the C.J. becomes President. Is he still Chief Justice? He was appointed for life. If he is both, that puts the leadership of two branches of gov’t in the hands of one person - not a good idea. If he’s required to resign to assume the Presidency, the C.J. is out of luck when his term ends (regardless of election outcomes, his term will not last for life).

So perhaps the job of Justice is seen as the better gig and the Supremes have little motivation to pursue a solo career?

[Northern_Piper]

Well, the current statute governing the line of succession says that if anyone becomes President through the operation of the statute, the person is deemed to have resigned from the office that he/she was holding. U.S.C. Title 3 reads:

“Sec. 19(d)(3) The taking of the oath of office by an individual specified in the list in paragraph (1) of this subsection shall be held to constitute his resignation from the office by virtue of the holding of which he qualifies to act as President.”

[zev_steinhardt]

**
Well, say we decided to change the succession to include the Chief Justice, then through some fantastic circumstances the C.J. becomes President. Is he still Chief Justice? He was appointed for life. If he is both, that puts the leadership of two branches of gov’t in the hands of one person - not a good idea. If he’s required to resign to assume the Presidency, the C.J. is out of luck when his term ends (regardless of election outcomes, his term will not last for life).

So perhaps the job of Justice is seen as the better gig and the Supremes have little motivation to pursue a solo career?
**

You could ask the same question if the CJ decided to run for President. After all, as long as he meets the other criteria (age 35, natural-born citizen, 14 year resident), he is eligible to run. Would he have to resign from the SC upon election?

Zev Steinhardt

[bibliophage]

In the Constitution, the closest I could find was Art. 2, Sec. 1, para. 6

The President shall, at stated times, receive for his services, a compensation, which shall neither be increased nor diminished during the period for which he shall have been elected, and he shall not receive within that period any other emolument from the United States, or any of them.

There’s a law setting the salary of the Chief Justice, and I doubt there’s any provision for his refusing to accept that emolument. Therefore, you can’t be both Prez and CJ simultaneously.

There is also Article 1, section 6, para. 2, prohibiting sitting senators and representatives from holding any other office in the federal government.

I’ve also heard that the Vice President can’t hold any other office (except ex officio posts). You couldn’t have a Vice President who was also the Secretary of State, for example. I’m not sure what the exact source of this rule is, but it may be an interpretation of either of the two above paragraphs. The first could conceivably apply if you hold the VP to the same standards as the Prez. The second could apply if you consider the VP to be a senator, in his capacity as President of the Senate.