Could Justice Thomas Preside over President Trump's Impeachment Trial?

Seth Barrett Tillman and I suggest that the answer is yes.

|The Volokh Conspiracy |

Seth Barrett Tillman and I explain at Balkinzation how Clarence Thomas, the most senior Associate Justice, could preside at an impeachment trial in Chief Justice Roberts's absence. Here is a snippet:

Our understanding of the House Officers Clause and Senate Officers Clause also informs a contemporary and unsettled question: What would happen if the Chief Justice was unable to preside at a presidential impeachment trial? We suggest that the Constitution treats the position of Chief Justice in a similar fashion as it does the Speaker. In both cases, the greater power to create (by statute) or fill (by vote) a position, includes the lesser power to select temporary substitutes for or when that position goes vacant.

There is some evidence from the first Congress which supports our position. The Judiciary Act of 1789 established a 6-member Supreme Court composed of a "chief justice and five associate justices" having "precedence according to the date of their commissions." Through this seminal law, the First Congress recognized that the greater power to create an office by statute, i.e., the Chief Justice's position, embraces the lesser power to create temporary alternates. If, for whatever reason, our first Chief Justice, John Jay, had been unable to attend to matters at the Court, the Associate Justice with the most seniority would preside. Indeed, the Constitution and the text of the Judiciary Act provide evidence of this principle: the Constitution refers to a Chief Justice and "judges of the Supreme Court"—not "Associate Justices." The Judiciary Act of 1789, and not the Constitution, introduced the term Associate Justice. This statute's language suggests that the First Congress intended that the other judges of the Supreme Court could serve as substitutes for the Chief Justice.

A more modern statute, from 1948, offers on-point guidance. It provides that "[w]henever 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." In other words, if the Chief Justice cannot perform his duties, then the associate justice with the most seniority—known as the Senior Associate Justice—serves as acting Chief Justice.

To be sure, this statute appears in the chapter of the United States Code that governs the Supreme Court. This provision could be read in a narrow fashion: it may only apply to the Chief Justice's regular Supreme Court duties (and other duties conferred by statute), but, perhaps, it does not extend to the Chief Justice's constitutionally-mandated role during a presidential impeachment trial.

There is no good policy reason why this statute should be read so narrowly—especially in the unlikely event that Chief Justice cannot preside. The existence of this statute could avert something close to, if not an actual constitutional crisis, in which a presidential impeachment trial is unable to proceed to a verdict. We know that the House has the greater power to fill the Speaker's position, and also has lesser power to choose a substitute. Likewise, 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. Moreover, the 1948 statute reflects the original practice of the government in regard to temporary alternates for positions specified by constitutional text.

By all accounts, Chief Justice Roberts is in good health. (He was briefly hospitalized after a seizure in July 2007.) Moreover, we do not put any weight in claims that Roberts would have to recuse from the trial. Roberts' pointed opposition to President Trump's criticism of "Obama judges" was well-measured, and it does not give rise to the appearance of impropriety. But in the unlikely scenario that Roberts is unavailable, Clarence Thomas, the most senior Associate Justice, would preside. Indeed, if Roberts and Thomas both were to bow out, Ruth Bader Ginsburg—the next most senior Associate Justice—would be called upon to preside. Albeit, her own comments about Trump would give rise to a much stronger case for recusal.

We think these substitutions would be constitutional, even in the absence of the 1948 statute. However, the existence of the 1948 act ensures that there is a statutory basis by which Justice Thomas, or even Justice Ginsburg could preside. All should hesitate before calling this statute into constitutional doubt, at the moment of a presidential impeachment, especially when both background principles and long-standing congressional procedure support the law's validity.

Fortunately, these scenarios are unlikely, but it is worthwhile to consider all possibilities before they arise. When position of Chief Justice is vacant, and when the Chief Justice is unable or unwilling to preside over a presidential impeachment trial, our government should not and need not grind to a halt.

NEXT: Today in Supreme Court History: November 17, 1880

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  1. I know that the Democrats in the House have decided not to follow the rules used in the Nixon and Clinton impeachments. The Republicans in the Senate might to follow suit during the trial, if any should come about. They can decide which witnesses to subpoena, including both Bidens and a whole host of players embarrassing to the Democrats, and play their own games.
    The Democrats should think whether they want this thing to go so far.

    1. If the Rs in the Senate think that the Ds in the House are being unfair, then yes, I see no reason why the Senate has to run any sort of fair trial. I think most people already are assuming that there is no way the Senate Rs will be objective jurors–and that assumption was made long before the House began its actual investigation. (The only pressure on the Senate–or the House–to be fair is political, not legal, of course.)

      If the Senate Rs want to really whore themselves to maximize the chances of a Trump 2020 reelection, then they can certainly bring in Biden(s). Or, conduct a completely separate investigation (a la Benghazi) and do nothing but smear the Bidens. Absolutely nothing (other than possibly looking bad to voters) in Senate rules would prevent this.

      Johan, if you have links to you complaining about Senate Rs doing this to Hillary re Benghazi a year + before the 2016 election, then please do post again with those links. Otherwise, just acknowledge that Nixon and Clinton both had MASSIVE investigations and reports before those matters got to the House for any sort of impeachment vote, and that is the big difference. Both Nixon and Clinton happened in times where Republicans writ large still had integrity and balls, and so this is different in those ways. And now, Ds are acting under the rules that *Republicans* enacted under the prior administration…they’re not something that Dems pulls from their collective asses.

      But other than the above . . . you make good points.

      1. “assuming that there is no way the Senate Rs will be objective jurors”

        Just the Rs? I think the Dems are no more likely.

        1. Fair enough.

          But back during Bill Clinton’s mess, I do remember tons of Democrats saying various versions of, “What he did was bad. It is bad to cheat on your wife. It is really bad to do it as president. It is *really* bad to do it in the Oval Office. And it is SUPER bad to lie about anything under oath. BUT . . . we think that lying about having sex has nothing to do with being president, and so we do not find this to be close to calling for the removal of a president.”

          That was, to me, a very logical and compelling argument. So, when some Republicans have said, about Trump, “What he did was troubling. But not worthy of impeachment.”, that is perfectly fine with me. People of good faith can disagree about that point.

          But, it is also COMPLETE BULLSHIT to accuse Democrats of a witch-hunt. Because that is saying, “No reasonable person could look at what Trump has done or said and conclude that he tried to get Ukraine to meddle in our upcoming election.” It is saying, “All the Democrats are, therefore, acting in bad faith.”

          That is, of course, a BS argument, and a BS defense. I would have so much respect for my fellow Republicans if they would say publicly what they DO say in private . . . “I am appalled at what Trump has done, and it’s reasonable that Democrats are investigating him. Even if I strongly believe that removal from office is *way* out of bounds for what he is accused of.”

          Instead (so far, at least) all we have seen is idiotic defenses from pathetic Republicans so afraid of Trump–and of being primary’d–that they have put their values in a blind trust. Hell, the bar has been set so low . . . I’d be happy if there was just one, JUST ONE, Republican senator who had the balls to stand up to Trump, and publicly denounce his actions, like Senator Joe Lieberman famously did back in Sept of ’98. An act of courage that, 20 years later, is probably Lieberman’s enduring legacy. (What Republican senators say about Trump to each other, or off-the-record to reporters, is widely known.) With 50+ Republican senators currently serving, is it really too much to expect a tiny handful of them to have the honesty, the decency, the integrity, to publicly say what they truly think and feel? That’s the thing that depresses me most of all.

          1. “is it really too much to expect a tiny handful of them to have the honesty, the decency, the integrity, to publicly say what they truly think and feel?”

            Yes. They are politicians, be serious.

            Look at the poll average, Trump’s approval is 1 whole point under its summer high, impeachment approval gets one whole point more than disapproval. Move those numbers, then maybe somebody will rediscover “integrity”.

            Lieberman has no legacy. No one remembers who most senators were or did after he or she quits/dies/loses.

          2. These aren’t mutually exclusive – many Ds could be engaged in the witch hunt they euphemistically declared at the election (viva la Resistance!), while also in pursuit of an actual witch this time. The problem for non-partisans like me who keep hoping for lightning storms over the Capitol is that they (numerous individuals, who are vaguely aligned, but who accept a D next to their name) have repeatedly made specious allegations. Emoluments, really? “I’ve seen the specific evidence of Trumps collusion with Putin…..” and this is the guy running the “investigation”?

            The real question is: does Trump float?

            1. The goalpost shifting indicates it’s been about getting a political opponent rather than concern for any of the many issues.

              It can be both. I’ve been saying it’s all crocodile tears as people are secretly joyous and happy they may have found something to nail him with, “finally”, e’en as they somberly look into the camera and say what a sad moment it is.

              It’s all about the power.

          3. Jeff Flake (R) has denounced Trump, in very strong terms. Among others, but that’s the first that came to mind.

          4. “Instead (so far, at least) all we have seen is idiotic defenses from pathetic Republicans so afraid of Trump–and of being primary’d–that they have put their values in a blind trust.”

            They’re not afraid of Trump. They’re afraid of their own constituents. Specifically, they’re afraid of the fact that Trump is actually more popular with their own constituents than they are, so that if they cooperate in impeaching him, they’re voting to remove themselves from office at the next election, too.

            The ones who hated Trump enough to view that as a reasonable price to pay have already retired.

          5. The people who say Trump’s actions don’t pass the sniff test, also say any questioning of Biden’s actions or Democrat/Ukrainian actions in 2016 are a conspiracy.

            1. Untruthful. I welcome the Senate to start its own, SEPARATE, investigation of the Bidens. My understanding was that this was already done and totally debunked, but maybe I’m wrong about this. The Senate did this, as a hit job against Hillary before the 2016 election. It can do it again re 2020, this time against the Bidens. Hell, it can do it again for 2024, against whomever is the most formidable potential Dem nominee. It can become something like an annual Thanksgiving tradition we can look forward to.

              The Senate, of course, has the right to open any investigation it wants. My *only* objection is the ridiculous attempt to tie this to the Trump investigation, and there has been–quite rightly–a massive effort to oppose this rather-obvious deflection.

              (When the Bidens start ordering people to not testify in response to valid subpoenas, and start ignoring valid subpoenas for documents, then I’ll start to buy in to your attempted equivalency.)

              1. “My understanding was that this was already done and totally debunked, but maybe I’m wrong about this. ”
                -I can’t find any real investigation by the Senate on this point. Yet. It may be forthcoming.

                “My *only* objection is the ridiculous attempt to tie this to the Trump investigation.”
                -It’s actually inherently linked to the Trump investigation, because this is the reason the entire Trump investigation exists.

                There are serious concerns about Hunter Biden and Joe Biden and their activities, not only with Ukraine, but with China as well. Issues that go far beyond simple corruption. There are now allegations that Biden used his influence to speed acquisitions of US companies by the Chinese government through the CFIUS process. This has grave implications for national security.

                Suddenly the conversation switches to “Trump asked a friendly foreign government to help investigate a US citizen who may be helping to pass military secrets to a hostile power”. And Trump is supposed to be impeached over this?

                1. Maybe make your spin less obvious.

                  Trump used military aid to a beleaguered friendly foreign government to strongarm them into announcing an investigation of his political opponent.

                  Do you see why the specifics of the opponent don’t actually matter?

    2. I believe the Democrats in the House are quite willing to hear from witnesses who might provide exculpatory evidence. Giuliani, Mulvaney, and Bolton, for starters, appear to know a lot about this whole matter, and could provide first-hand knowledge of Trump’s statements and instructions.

      Indeed, I’m sure they would welcome having Trump himself take the stand to explain the innocence of his actions.

      It is, oddly for an innocent man, Trump himself who prevents these witnesses from appearing.

      1. Bernard,
        That is a fair point. It is clear that one side is bending over backwards to look as guilty as possible by attempting to hide evidence and witnesses from Congress and from the American people . . . and I guess it’s valid to point out that fact.

        1. Yawn. The lamest “gotcha” I’ve seen today.

          1. So you have no response, other than to call it “lame.”

            That’s typical. It pretty well matches the GOP strategy of having no real defense of Trump, and saying all sorts of irrelevant and stupid things.

            1. Lame is all it deserves.

              The defense tactics are working. Too bad, maybe beat him next November instead, if you can.

              1. The defense tactics are working.

                I’m sure you find them convincing.

                1. They are keeping GOP voters on board, that is all they need to “work”.

        2. One side is innocent until proven guilty. It is the responsibility of the prosecutors to prove the crime. (It would help if they would name a crime)
          So far, according to all the testimony, POTUS is well within his Article II powers, of requesting Ukraine to honor the Treaty with the US to aid in conducting investigations into corruption. There are only two outcomes to the investigation. Biden’s are not involved, like all Dems claim. So the investigation clears them, good outcome for the USA. Or there is evidence of Biden’s corruption, Still a good outcome for the USA.

          1. That treaty you mention? It requires Ukraine to aid the U.S. when the DOJ conducts an investigation, and vice versa. But immediately after the transcript was released the Department of Justice made absolutely clear they had no investigation underway. Your precious treaty has zero relevance when the president is (1) using extortion to force another country to aid his reelection campaign, (2) trading U.S. government favor for private gain, (3) demanding foreign collusion to affect a U.S. election (stage-managed by Trump’s personal lawyer with two low-grade crooks as legmen).

            Which is easily an impeachable offense – and so-named countless times after the shakedown was exposed. I guess you missed them all, huh?

            1. That’s a lot of dumb buzzwords for the party that literally colluded with Ukraine to interfere in the 2016 election and thereafter, and is now trying to impeach Trump for exposing that.

              “Ukrainian government officials tried to help Hillary Clinton and undermine Trump by publicly questioning his fitness for office. They also disseminated documents implicating a top Trump aide in corruption and suggested they were investigating the matter, only to back away after the election. And they helped Clinton’s allies research damaging information on Trump and his advisers, a Politico investigation found.” 1/11/17

              1. the party that literally colluded with Ukraine to interfere in the 2016 election and thereafter, and is now trying to impeach Trump for exposing that

                This is some crazyness right here.

      2. “I believe the Democrats in the House are quite willing to hear from witnesses who might provide exculpatory evidence. Giuliani, Mulvaney, and Bolton…”

        I believe that the House Democrats would love to have testimony from Giuliani, Mulvaney and Bolton.

        However I do not believe that they would accept it if the testimony of those witnesses turned out to be exculpatory. It is far more likely that they would accuse them of and try to have them charged with perjury.

        1. I doubt it. Perjury is hard. They know they would fail and have egg on their faces.

          1. We already have the ex Ambassador lying. But she is a Democrat, so , “no reasonable prosecutor” would ever prosecute

          2. It’s the holiday season, they’re already showering in eggnog, metaphorically anyway. What’s another egg?

            Realistically, if Guliani gives exculpatory testimony, and the Democrats decide to claim he perjured himself, the news in 90+% of news outlets will be, “Guliani commits perjury”. The Democrats have no fear of egg on their faces, their media allies will airbrush it off every time.

            1. And that’s why the Dems want to call all those seemingly exculpatory witnesses- to use the liberal media to persecute them.

              Good thing Trump’s too clever to fall for that and going for the blanket obstruction tactic!

              1. Yeah, pretty much. At least half the jihad against Trump has involved trying to render him radioactive by making clear that, if you work for him, you WILL be ruined sooner or later, no matter what it takes.

                1. Just look at the sudden attack on Rudy by the SDNY.

                  1. Attacks like that don’t come on sudden.

            2. I have little doubt Giuliani would attempt exculpatory testimony. But we’ve seen how that worked with Gordon Sondland. He has already “remembered” many facts opposite his original testimony and expect more “adjustments” to his story to come by public testimony-time. Too many witnesses are contradicting him.

              As for Rudy: One of his two bagmen, Lev Parnas, is already talking. Bolton has signaled he is eager to talk, only insisting he must be “forced” by court order. So, yes, I’m convinced we’ll get an honest account from both Giuliani & Bolton if/when they testify. There were too many people involved in this shakedown for much free improvisation. But will their accounts help Trump?

          3. I’m not suggesting that it’s a deliberate perjury trap. I am suggesting, that the Democrats would not accept exculpatory testimony as true/valid.

        2. And with the help of the SDNY and FBI would SWAT raid their houses, arrest their wives and children on CNN’s cameras, attack and arrest their lawyers and charge them with 800 crimes that we’ve seen Democrats get away with time and time again.

    3. McConnell is already on record as saying he is not going to change the impeachment rules. He doesn’t see any need to go to the nuclear option to change the rules when a simple majority gives the GOP sufficient control under the current rules.

      I still think the house will ultimately not vote to impeach. There is no upside to impeachment other, it’s not moving any voters, Trump’s defense is liable to cripple Biden, it allows Trump to say he was vindicated by the Senate.

      I think censure is the most likely outcome because it gives the House the last word, except on Trump’s Twitter account, it might be more palatable for moderate house members in red districts.

      1. I keep wondering if Pelosi is playing 4D chess and letting her crazies run themselves off a cliff, to be replaced by more controlled Democrats.

        If that’s her plan, it would look an awful lot like what we’re seeing.

        1. I think she’s just riding the tiger, and if the tiger decides to run towards a cliff, that doesn’t mean you can safely dismount.

          Like McConnell in the Senate, she values her leadership position above the welfare of her own party, and acts accordingly. If the party runs towards self-destruction, she’ll get out ahead of them and yell, “Follow me!” if there’s no other way of remaining Speaker.

          She’s in a safe seat, the party can run off that cliff and she’ll still have a job.

        2. Robert Beckman: I keep wondering if Pelosi is playing 4D chess

          I keep wondering if everybody on the Right is wholly committed to fantasy. What cliff? The impeachment proceedings poll with substantial public support. Over 70% of Americans believe Trump’s call was either illegal or unethical. RCP’s poll average has removal of Trump thru impeachment at +2.8%.

          There’s no “cliff” here. During the trial, Trump may drag a majority into saying his conduct was sleazy & unethical, but not worth removal. That’s extremely possibly. But it won’t be because they held these proceedings “crazy”…..

          1. “+2.8%”

            Not big enough comrade.

            1. Depends, Bob, on what we’re talking about.

              Is 2.8% big enough to get Republican Senators to put country in front of party? Probably not.

              Is 2.8% big enough to make clear impeachment proceedings aren’t some “cliff” per Robert Beckman/Brett Bellmore. Easily.

              Look, you probably know Trump is guilty of using U.S. government favor for private gain; you just don’t care. You wouldn’t care if Trump started shooting random strangers on Fifth Avenue. And there is a percentage of people like you, but that percentage hasn’t budged a bit these past four years. Some people just enjoy a WWE-style dumpster-fire president. An entertainment thing, I guess. But your fantasized mass-public uprising to defend Trump’s “honor” ain’t gonna happen. There aren’t enough toadies to pull that off….

      2. Kazinski…I disagree. The House will impeach POTUS Trump. They’ll impeach him for abuse of power, obstruction of justice, contempt of Congress, and quite probably throw in attempted witness intimidation for good measure. The battle lines will be drawn, the bitterness and acrimony will worsen, and DC will be a veritable war zone. Impeachment will tear our Republic apart.

        Anyone who thinks that there will be 67 votes in the Senate to remove POTUS Trump from office is delusional. The votes are just not there, period.

        I don’t think there is 3D or 4D anything. What we have is a political party bound and determined to remove the POTUS by any political and legal means necessary. Since the day after the election, Team D has made no secret of their intentions. We should not be surprised to see them act upon it.

        1. By any means necessary, period. They’re just, thankfully, willing to try the political and legal means first.

          My advice to Trump: If he’s reelected, take the oath of office inside a bullet resistant shield.

        2. I don’t think there is 3D or 4D anything. What we have is a political party bound and determined to remove the POTUS by any political and legal means necessary. Since the day after the election, Team D has made no secret of their intentions. We should not be surprised to see them act upon it.

          Weird, then, that they did not actually try to remove the POTUS by any political or legal means for three years, then.

      3. I still think the house will ultimately not vote to impeach.

        I still think you’re delusional.

        (I am assuming, of course, that Trump doesn’t head off impeachment the Nixon way.)

  2. Josh,
    I had not thought about the issue you raise in your OP. (I suspect that it would be a great episode in a TV drama like “The West Wing.”)
    As I think back to the Clinton impeachment trial, I have to admit that I did not follow it so closely so that I can remember any evidentiary rulings that CJ Rehnquist had to make . . . or any other “judge-y” things a trial court judge would do in any normal courtroom. [My only real memories of Rehnquist were, of course, his bedazzled robe, the fact that he borrowed the idea for bedazzling from Gilbert & Sullivan, and that he later famously wondered aloud if he could get a tax deduction if he donated this now-famous robe to the Smithsonian.]

    Would it matter in *any* substantive way if the person who actually presided at the Senate trial of Donald J. Trump was Roberts, or Thomas . . . or RBG?

    1. “Would it matter in *any* substantive way if the person who actually presided at the Senate trial of Donald J. Trump was Roberts, or Thomas . . . or RBG?”

      No. The existing Senate rules say that CJ can decide a question but it is subject to the majority of the senate if one senator so requests. Or the CJ can just not rule at all and defer it to the Senate . I think Reinquist just referred everything, figuring that it be a waste of time to do otherwise.

      Rule VII “And the Presiding Officer on the trial may rule on all questions of evidence including, but not limited to, questions of relevancy, materiality, and redundancy of evidence and incidental questions, which ruling shall stand as the judgment of the Senate, unless some Member of the Senate shall ask that a formal vote be taken thereon, in which case it shall be submitted to the Senate for decision without debate; or he may at his option, in the first instance, submit any such question to a vote of the Members of the Senate.”

      1. Bob,
        Thanks for the info. So, the role is largely ceremonial, as I suspected. And the controlling party can include or exclude any evidence it wants–assuming that majority party will vote in lock-step.

        Which kinda makes sense; since it’s not a real trial, the only reason to have a dispassionate judge making rulings is political–so it looks “fair” (whatever the hell that word means, in this context) to the American people.

        1. I think he could have a role in keeping the Senate honest. It won’t matter it this case, but say you had a Senate dead set on railroading a president for political reasons, while the Chief Justice could be overruled at least it would contrast a fair ruling with a political one.

          If it goes to trial here I think the key rulings will be how much if any hearsay evidence to allow.

        2. “Which kinda makes sense; since it’s not a real trial, the only reason to have a dispassionate judge making rulings is political”

          The reason that a “dispassionate judge”, the chief justice, presides is so it’s not the Vice President.

          1. Which is oddly even Stranger in the original constitution, because the VP was the first guy who lost……

            1. Which only reinforces the point that he wouldn’t be objective.

      2. Rule VII “And the Presiding Officer on the trial may rule on all questions of evidence including, but not limited to, questions of relevancy, materiality, and redundancy of evidence and incidental questions, which ruling shall stand as the judgment of the Senate, unless some Member of the Senate shall ask that a formal vote be taken thereon, in which case it shall be submitted to the Senate for decision without debate; or he may at his option, in the first instance, submit any such question to a vote of the Members of the Senate.”

        OK : This is my question : John Bolton is demanding he be “forced” to testify, and dropping very strong hints he has quite the story to tell. The White House is stonewalling, preventing testimony by multiple witnesses. We all know that testimony will eventually be forced, Nixon vs U.S.-style, but the goal here is to run out the clock. Will Chief Justice Roberts have more ability to enforce a subpoena?

        1. The GOP majority is not going to subpoena Bolton.

          1. Really Bob? You think the GOP will refuse to subpoena one of the most critical witnesses on trial charges? Well, we’ll see, but I bet you find Republican Senators less willing to take a bullet for Donald John Trump than you suppose.

    2. I think based on RBG’s past comments, she might need to recuse herself.

  3. Not sure Professors Blackman and Tillman’s analysis is correct here. The chief justiceship might be operationally created by statute, but it’s clearly constitutionally mandated. It’s the only judicial office explicitly named in the Constitution. Indeed, the entire federal judiciary could, constitutionally, consist of only the CJ, but the CJ must exist. The part of the Judiciary Act of 1789 that establishes the chief justiceship should be considered a purely ministerial act, not an exercise of legislative power.

    The Constitution’s command that the chief justice preside at the president’s trial is properly read as a separation-of-powers provision, not modifiable by statute (Marbury v. Madison). Consider the following hypothetical example: the House and Senate are both more-or-less set on removing the president, but they want a compliant presider over the trial. So, they impeach and remove the chief justice, an ally of the president, first. According to Blackman and Tillman, they can now proceed with the senior associate justice as presider. But, if the impeachment clause is read as an inexorable command, they would have to wait for the president (whom they hate) to nominate a new chief justice, then confirm the new CJ, and only then proceed to impeachment. This protects the president’s rights immediately, and it protects the Court’s independence in the long run. That is, it makes it much less likely that the CJ will be impeached for purely political reasons.

    I think the concern the Framers showed for any particular branch arrogating too much power underscores the importance of treating the impeachment presiding clause as a fundamental separation-of-powers issue, not a technical one addressable by statute.

    1. You may not have to go so far afield to understand the reason for the Chief Justice to preside over a presidential impeachment. The Vice President would have a conflict of interest.

      1. On the other hand, the Constitution doesn’t specify who presides if the Vice-President is impeached, so presumably it’s the Vice-President.

        1. Interesting…I’d suggest that if a VP were so audacious as to want to preside at his own trial, Congress should respond with a constitutional amendment to have the Chief Justice preside whether the Pres or VP is impeached. The states would ratify fairly quickly, I think.

        2. Presumably, but it’s a reputable presumption. The Senate has “sole power” to try all impeachments so if they specify someone else to preside then the vice-president will have to stand aside. He may however get to cast a tie breaking vote on the rule change.

  4. Why bother with this analysis? First, we have a CJ, poor one that he is notwithstanding. Second, the Senate will just do what the Senate majority wants.

    1. No doubt you can read more in Prof. Blackman’s latest book. I’m sure he can provide an Amazon referral link on request.

      1. Or even without a request.

      2. Spoiler alert … it’s already sold out! Whether that means 2 copies were made available and 4 orders were placed, or 10,000 copies were made available and 20,000 orders were placed…either way…demand has exceeded supply is the headline you get.

  5. I dunno about this transtextual analysis.

    But to throw some partisan chum in the waters, I do know Thomas would be a much tougher choice than Roberts. While I am quite satisfied by his opinions that he’s a professional and puts his persona opinions to the side (even if I think his legal opinions are pretty kooky), this is not a commonly held view on the left.

    I’d say stick with Roberts. Best backup: Breyer.

    1. I’d trust anyone of them to be mostly impartial, meaning impartial enough for a fair trial, except possibly the Wise Latina (has that been updated to “Wise Latinx”?)

      But I disagree about Breyer, Kagen or Gorsuch would be the top choices for the most non-partisan in terms of fairness despite their political views. I’d even trust RBG in a trial to be fair, but her own comments have disqualified her.

      1. It’s not impartial I we need – it’s the perception to the public that matters.

        1. It’s both, unless you’re cool with a rigged trial so long as the public can be deceived into thinking it’s fair.

          1. Looks like it’s a ceremonial presiding to me.

  6. A more plausible interpretation: If the Chief Justice is unable to preside – or resigns or dies – then delay the trial until the chief recovers – or a new Chief is appointed.

    Assume they call in Justice Thomas, assume he agrees to preside, and assume also that they can’t get the 2/3 to convict. Cue the conspiracy theories of how Thomas threw the trial. If I were him I wouldn’t touch an impeachment trial with a 10-foot pole.

    1. I think that is so unlikely as to be a strawman argument. No one–NO ONE–believes that 2/3 of the Senate will vote to convict. Opinions range from “No way in hell” (heard equally from Dems and Rep’s) to “Some R Senators will keep an open mind…but not more than a handful and that is a million miles from the needed 67 total.”

      So, it is much (much much much much much) more likely that when the House impeaches and the Senate votes to not convict, Dems will say, “We presented overwhelming evidence, but Senate Rs are cowards. Presiding Justice Thomas? He had absolutely no impact on the trial. Even if he had gone to the extreme in his rulings to *favor* Democrats, not a single additional Republican senator would have changed her or his vote.”

      The proof of this will be when, after the actual trial, when Ds lose in the Senate, you are not gonna hear whining about the mean ole CJ Roberts. Dems will, quite rightly, blame Senate Rs. First, because that is where the credit/blame actually sits. And second, because there is almost no political advantage to (falsely!!!) blaming a SCOTUS justice for a result that doesn’t involve, you know, an actual Sup. Ct decision, while there is a lot of potential political advantage to blaming those who cast votes in the Senate.

      Time will tell. And if my guess happens to be wrong, I’ll have the integrity to post here and say, “I was flat-out wrong and Eddy was right.” But I’m not holding my breath.

      1. “I was flat-out wrong and Eddy was right.”

        Wait…right and wrong about what?

        This is a legal blog. I constructed a hypothetical scenario using the magic word “if.”

        The only prediction I ventured about the future was this, and I’ll repeat it:

        “Assume they call in Justice Thomas, assume he agrees to preside, and assume also that they can’t get the 2/3 to convict. Cue the conspiracy theories of how Thomas threw the trial.”

        Since I don’t think they’ll be calling on Thomas, then I don’t think there will *be* an opportunity to prove me right or wrong.

        1. OK, I used the word “assume,” not “if.”

        2. “if my guess happens to be wrong”

          Just to emphasize, I’d say the chance of Thomas presiding is so slim that I really don’t think you’ll have the opportunity of testing our respective predictions.

    2. The left is going to cry foul no matter what the Senate decides. They already decided to impeach Trump regardless of if any evidence exists. What we are seeing transpire in front of television cameras is mostly kabuki theater.

    3. Note: the Constitution says 2/3rds of those present must vote.

      That’s not equivalent to 2/3rds of the Senate.

      1. Absolutely. It would be perfectly constitutional to convene the Senate with only 51 members present, and ram through a conviction with just the votes of a fraction of the Democrats. It would merely require the cooperation of the Republican leadership.

        Who don’t particularly like Trump, but neither are they politically suicidal, so they’re not going to do it.

        In fact, it wouldn’t be constitutional, but neither would it be totally outside Senate practice, to convene the Senate with just three or four members present, and convict him on a voice vote so the lack of a quorum would not be on record. But I like to think Roberts would balk at being a party to doing THAT.

  7. Roberts’ pointed opposition to President Trump’s criticism of “Obama judges” was well-measured …

    HA!!!!!

    Dude looks like he’s gonna break down in tears at any moment — just waiting for the moment that RBG forgets to take the ball-gag out his mouth before session …

  8. I think if the Chief Justice was unavailable (for whatever reason) it would be up to the Court to send whatever Justice they found was appropriate supporting that decision with a memorandum or some sort (seeing an advisory decision would be clearly unconstitutional).
    If the Senate disapproved for the presiding officer that was sent it could vote to not seat that individual.
    If that resulted in a lawsuit that was justiciable which ended up at the Supreme Court the Court could issue any decision it deemed appropriate. It would then be up to the Senate to either accept that decision and seat whoever the Court says can fulfill that constitutional duty or decide not to follow it using the excuse it has the constitutional duty to set its own rules of order.
    In the event of the later, you would have a good old fashion constitutional crisis, but it would have little practical impact. The presiding officer can be overruled by a majority of the Senate meaning their decision ultimately only have weight if 51 Senators do not vote to overrule it.

  9. I love these types of articles! The small things that nobody thinks about that may have a big impact.

  10. I’d say that if the CJ is unable to preside – eg, in a coma, resigns and the Pres refuses to nominate a successor – then a quick Constitutional amendment could fix the situation by saying that if the CJ is unavailable, the pro tem president of the Senate presides. This Senator is in the line of Presidential succession, but he’s behind the Speaker of the House and any new President would nominate a new VP so the idea of the pres pro tem presiding himself into the Presidency of the U. S. seems far fetched.

    1. That SHOULD be the response, but it won’t be: The people running Congress no longer believe in constitutional amendments as a response to constitutional deficiencies. They’ve ditched Article V in favor of suborning the Supreme court, because it’s more convenient, and doesn’t give the states any chance to refuse to ratify.

    2. “quick Constitutional amendment”

      LOL

      1. The 26th amendment to the Constitution. In Oregon v. Mitchell, the Supreme court overturned a legislative effort to force states to lower voting ages to 18, in late 1970.

        By March 1971 Congress had voted the amendment out to the states, and it was ratified by July 1st, about half a year after Oregon v. Mitchell was decided. From proposal to ratification was just a few months.

        Quick Constitutional amendments are not oxymorons, they are entirely possible.

  11. The simple solution is for the President to name a new CJ and the Senate confirm. The onus falls to the Senate, as designed by the Constitution.

  12. If Dems vote to impeach, they will wish they hadn’t. Sanders and Warren won’t be able to campaign for several weeks. Dems won’t be able to stage-manage the trial. And they’ll be about 20 senators short of the total to convict.

  13. This sort of reasoning makes me want to tear my hear out. The form of the argument is:

    1. The Constitution must deal appropriately with situation X.
    2. The text of the Constitution doesn’t, interpreted in the normal manner of language, deal appropriately with situation X.

    therefore

    3. We must attribute to the Constitution a meaning different from what the words communicate.

    This sort of reasoning robs language of its function. It renders Article V redundant. It licenses people to attribute to the Constitution any meaning they imagine would be better than what it actually says. In the end, if you go down this road, you might as well not HAVE a constitution!

    Chief justice is a constitutionally defined position subject to nomination and confirmation, not a statutory position. And the Constitution says that the Chief Justice “shall” preside. Not the language of discretion, this is a command.

    Yes, this can potentially cause problems. The potential to cause problems does not, by itself, amend the Constitution. If the meaning of the Constitution causes problems, then it does, deal with it.

    “Dealing with it” means, yes, persuade enough people that it’s a big problem, and use Article V to change the actual words. Because until you do, the problem is just there, and lying about what the Constitution means doesn’t solve problems, it creates them.

    And at this point we have no shortage of problems caused by deliberately attributing to the Constitution meanings not found in the text. Let’s not add to them.

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