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11/19/2019

Josh Blackman & Seth Barrett Tillman on Impeachment without a Chief Justice (Updated)
Michael Ramsey

At Balkinization (guest-posting), Josh Blackman & Seth Barrett Tillman: Could Justice Thomas Preside over President Trump’s Impeachment Trial?  From the introduction: 

 During most impeachment trials, the Vice President presides over the Senate. But when “the President of the United States is tried,” the Constitution states that “the Chief Justice shall preside.” If President Trump were impeached by the House of Representatives, we can expect Chief Justice John G. Roberts, Jr. to cross the street from the Supreme Court to the Capitol. But what if Roberts can’t, or won’t do the job? Does President Trump get off scot-free? We don’t think so. Instead, the most senior Associate Justice would serve as acting Chief Justice. As a result, Clarence Thomas would preside.
 
Farfetched? Certainly. Impossible? Absolutely not. Seventeen people have served as Chief Justice. Nine of them died while in office. Historically, several months have elapsed before a new Chief Justice is selected. In the last two centuries, we have had two presidential impeachments. In both cases, the chief justices who presided over those trials subsequently became seriously ill and then died in office. Chief Justice Salmon P. Chase suffered a debilitating stroke two years after he presided over President Johnson’s impeachment trial. And Chief Justice William H. Rehnquist was diagnosed with thyroid cancer less than five years after he presided over President Clinton’s impeachment. It is difficult to imagine a circumstance in which Chief Justice Roberts would not be ready, willing, and able to preside over a presidential impeachment trial. But this unlikely scenario should be considered now, and not during a potential constitutional crisis.
 
As a threshold matter, can someone other than a Chief Justice act as a substitute and preside at the President’s impeachment trial? The text of the Constitution is silent about this question. Recently, Gerard Magliocca suggested that only the Chief Justice could preside. In contrast, Akhil Amar maintained that “the senior associate justice might presumably fill in temporarily” during a presidential impeachment trial if the Chief Justice had resigned. Long-standing congressional procedure with regard to temporary officers in the House and in the Senate suggests that Amar is correct. ...
 
I am doubtful about this proposition though:
 
Congress has the greater power to create, by statute, the position of Chief Justice. Therefore, Congress should have the lesser power to provide, by statute, for temporary alternates during a presidential impeachment trial. 
 
But Congress does not create the position of Chief Justice by statute.  The office of Chief Justice arises from the Constitution, as it is named in the Constitution.  (The post's ultimate conclusion may still be right, however).
 
 
(I agree with the answer but I won't even hint here as to what it is.)
 
UPDATE:  The Blackman/Tillman post has inspired more commentary.  At Balkinzation, Gerard Magliocca: Structural Arguments and Impeachment.  He argues:
 
Suppose that after President Andrew Johnson's impeachment, but before his trial was over, Chief Justice Chase had died. A constitutional textualist says, "Well, the trial cannot resume until a new Chief Justice is nominated and confirmed." Presumably, President Johnson would have responded by not nominating anyone. Without a nomination, there could be no Chief Justice. With no Chief Justice, there could be no trial verdict. With no trial verdict, there could be no removal.

That can't be right. The President cannot possess the power to halt his own removal through inaction. ...
 
I think this argument reflects the "perfect Constitution" fallacy.  Of course the President can possess the power to halt his own removal through inaction -- if the framers expressly provided for it, or if they mistakenly wrote the Constitution in a way that has this result.  Just because an outcome is bad (or even nonsensical) does not mean it is unconstitutional.  The Constitution is not perfect.  (But, a nonsensical outcome does suggest one might be misreading the Constitution).
 
 
I think there is a simpler solution. Article III vests the judicial power in one Supreme Court without specifying the number of justices and without any mention of a chief justice. Article II says only that the Chief Justice shall preside over presidential impeachments, with no mention of how the chief is chosen. The details are left to Congress, and 28 U.S.C. § 3 provides:

Whenever the Chief Justice is unable to perform the duties of his office or the office is vacant, his powers and duties shall devolve upon the associate justice next in precedence who is able to act, until such disability is removed or another Chief Justice is appointed and duly qualified.

That ought to be the end of the discussion, without wending our way through various analogous provisions of Article II (Blackman and Tillman) or relying on structure (Magliocca) before reaching 28 U.S.C. § 3.

I think this is wrong too, or at least incomplete.  The question is whether 28 U.S.C. § 3 is constitutional, as applied to the Chief Justice's constitutional duties.  Obviously Congress can assign the Chief's statutory duties to another Justice.    But as to impeachment the Constitution says the Chief shall preside.  Congress says someone other than the Chief will preside.  I think it's not clear Congress can do that, or if it can what limitations there might be.  Could Congress (or the Senate) provide that the majority leader of the Senate shall preside if the Chief cannot?  Can Congress (or the Senate) provide that the majority leader of the Senate shall preside if the Chief is a friend of the President, or was appointed by the President? If not, why not?

(Though as a practical matter I agree with Professor Lubet that 28 U.S.C. § 3 would likely be the end of the matter if the situation did arise.)