Below you can read Josh and Seth's excellent post on whether the Senior Associate Justice may preside over the President's impeachment trial if the Chief Justice cannot. My initial impression, which was that the answer was so, was incorrect. Josh and Seth offer a good explanation for why, though I have a somewhat different one.
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. (Note that for any other impeachment trial this is not an issue, because the Senate can select its own presiding office in the absence of the Vice-President.) To be sure, structural arguments like this are not always winners, as they are divorced from traditional legal authorities (cases, statutes, tradition, and so on). But in this case I think that the principle of "Nemo iudex in causa sua" is broad enough to cover a President preventing anyone from being a judge in his case.
One more thing. Let's hope this situation remains hypothetical. The last thing we need is uncertainty about who can preside over a Senate impeachment trial of the President.
:::Heh:::
ReplyDeleteDo professors stay up at night struggling to come up with the most far fetched hypos imaginable?
I see no reason why 28 U.S.C. § 3 should not control. Thomas should take over for Roberts.
Better wish Roberts good health. The historian Thomas may take his cues from Justice Chase and take a far more active role in a Senate trial than the Democrat prosecutors would like.
I've seen this sort of reasoning before. It makes me want to tear my hair out, which as you can see from my profile picture, is a bit of a problem. The form of the argument is:
ReplyDelete1. The Constitution mustdeal 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!
The Constitution specifies the chief justice, and nobody else. Yes, this can potentially cause problems. (For values of "problem" that are rather subjective at times.) 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.
For a related question, see Seth Barrett Tillman, Could the President Recess Appoint Himself into the Chief Justice’s Position During his own Impeachment?, New Reform Club (Nov. 18, 2019, 8:01 AM), ;
ReplyDeleteSeth
Hi there. Fyi, your post misspells Calabresi's first name (it's Steven, not Stephen), and the last sentence is missing a "the"; you'll see where.
DeleteFor a related question, see Seth Barrett Tillman, Could the President Recess Appoint Himself into the Chief Justice’s Position During his own Impeachment?, New Reform Club (Nov. 18, 2019, 8:01 AM), https://reformclub.blogspot.com/2019/11/could-president-recess-appoint-himself.html;
ReplyDeleteBrett speaks from an interpretative method that was never actually put in place in such a literal way. So, presumably, he is not really an "originalist" though that term is so broad that maybe he is. But, anyways, it suggests that the meaning of the text as a whole means something else. So, even if we are concerned about what the text means, that would not be a great way to interpret it. That is, if the matter was ever pressed.
ReplyDeleteTake the vice president. If the vice president was impeached, that sort of logic would suggest the v.p. would preside over their own impeachment trial. The text says the v.p. only steps aside if the president is impeached. But, there is a general principle (and general principles long before 1787 was understood to in some way limit text) that one should not be a judge of their own case. So, if impeached, it is unlike the v.p. would actually preside. At least, it would not be "unconstitutional."
Anyway, w/o actually binding myself to all that is said in the past discussion referenced by GM, both text and so forth very well opens up someone to step in if Roberts got ill or something. As a basic matter, the "chief justice" is not just a person but a position. The position by statutory and constitutional law both has various duties. If one person is unable to serve, someone steps in as acting chief justice. This is not a matter of "it has to be so." It is a logical, reasonable, interpretation of the language matched by history and practice.
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My suggestion is to have Stephen Breyer preside. People are saying Roberts is biased [this whole thing is a bit tongue in cheek, so don't take that seriously]. But, Thomas surely is -- for Trump. Then, RBG would be too biased against. The next in line would be Breyer [if we use seniority; there are other means to do this]. Now, some would think he was anti-Trump, but some will think one way or another for each justice. He's probably the best choice neutral-wise and his overall mindset is above the fray. See, e.g., after strongly dissenting, repeatedly saying moving on from Bush v. Gore was a positive sign of peaceful moving on from a great dispute.
Do professors stay up at night struggling to come up with the most far fetched hypos imaginable?
ReplyDeleteThat, and far-fetched arguments.
If the meaning of the Constitution causes problems, then it does, deal with it.
One way to deal with it is to amend it, but that's not alway feasible. If the CJ dies in the middle of an impeachment trial it makes no sense to say you have to amend the Constitution right now to continue the trial. Nor does it make sense to have to wait (forever) for the President to appoint a new CJ. Notice, by the way, that halting the trial until a new CJ is confirmed takes away from the Senate the "sole Power to try all Impeachments," since it lets the President halt the trial. So that's a violation also.
The Constitution can never cover every contingency. When something happens that it doesn't cover there has to be a way to handle it. Letting the Senior Associate Justice take over seems eminently reasonable to me.
Brett's comment is one of those that leaves sensible people tearing their hair out. Let's start with the basic problem: what to do when the Constitution is silent?
ReplyDeleteWe already know the answer to this, because it arose within a couple of months after the new government formed. The question then was, can the President fire an appointee? The House debated this for 127 pages (the Senate didn't report debates until later). Did the House conclude that the right answer was to amend the Constitution in order to supply the omission? No it did not.
By my rough count, there were at least 6 different arguments made: one based on the authority of The Federalist; those focused on the specific text, using various accepted common law principles of interpretation; those comparing other texts in the Constitution, also using general common law principles of interpretation; those based on Constitutional structure; Madison’s quasi-textual argument about the proper function of the executive; and one based on general principles of law. Putting aside for the moment which of these you would find most persuasive -- it's very interesting to read them all if you're into that sort of thing -- they all share a common feature – not a single one is based exclusively on the language of the Constitution itself. This is a critical principle which Brett misses often, so I’ll state it very bluntly: in order to interpret an ambiguous or unclear provision of the Constitution, we have no choice but to look to principles and arguments outside the language of the document itself.*
Brett's own pseudo-textual argument is itself a principle found outside the text of the Constitution. That will be true of every single other principle, such as "no man may be a judge in his own case"; a structural argument; "originalism"; or anything else. This can't be avoided because the Constitution doesn't provide a rule of interpretation within the text.
And there's a critical feature of these "outside the box" principles of interpretation: we don't construe texts to result in absurdity. This principle dates back to at least the early 1600s (one of Coke's famous opinions) and was well-known to the Framers, all of whom would likely have agreed with it. The OP does an excellent job of pointing out the absurdity and doing so within the context of another well-known principle about judging one's own case (Madison used that principle in Federalist 10 to explain the Constitutional structure).
So no, there's no need for the absurdity of amending the Constitution in the case posed.
*Note that this issue of firing appointees has arisen on subsequent occasions as well, namely the Andrew Johnson impeachment and in Supreme Court opinions (see Myers v US and Humphrey's Executor v US). At no time, as far as I'm aware, has anyone proposed an amendment.
Joe and byomtov are quicker, and I didn't see their comments before posting my own, but I agree with them.
ReplyDelete"This is a critical principle which Brett misses often, so I’ll state it very bluntly: *in order to interpret an ambiguous or unclear provision of the Constitution, we have no choice but to look to principles and arguments outside the language of the document itself.*"
ReplyDeleteTo be clear, I'm not "missing" this critical principle, I'm disagreeing with it.
The fundamental problem with this approach to constitutional interpretation is that it gives you a really strong incentive to find any part of the Constitution you dislike "ambiguous or unclear". You don't reluctantly conclude something is ambiguous, you zealously search for the slightest hint of ambiguity, or even just invent it, because it empowers you to write your own constitution.
BTW, I welcome GM's comments in the current discussion over McCulloch v. Maryland, especially given his books on 19th Century jurisprudence. He is in fact referenced once in the book itself. I found his two books good reads. The biography of John Bingham wasn't comprehensive, but interesting. The Bill of Rights book was interesting if somewhat underinclusive. I disagreed with some of his arguments on this space.
ReplyDeleteBrett flags a potential problem but is a bad prophet since his appeals to text repeatedly add things not there. Any interpretative method is going to have problems when applied by human actors. And, what Mark said is correct.
ReplyDeletePlus, again, it tends to not even be pressed. The chance of Chief Justice Roberts not presiding if we have an impeachment trial is slim. These "unlikely scenarios" are useful to discuss to help explain what the law means. Plus, they actually do come up now and then, given the myriad of experiences over the years.
But, absolute rules tend to fall apart in practice, especially when it is put one rule in a wider set of rules. This is how the Constitution and other systems of law are applied. This might upset people as a bit messy, but the law as life is a bit messy.
Also, Brett's "plain meaning rule" is itself to be found nowhere in the Constitution.
ReplyDeleteIt's probably a dated joke by now, but No Virginia, there is no plain meaning rule.
Well, of course there wouldn't be a plain meaning rule in the Constitution. There isn't a "periods end sentences" rule in there, either. Why would you even bother with a "This document is to be interpreted according to the rules of English grammar" clause?
ReplyDeleteMaybe they should have started each sentence with, "Simon says,", just to be certain?
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ReplyDeleteOf course there isn't a "no absurdity" rule in the Constitution. Who would write a document and expect readers to think it absurd?
ReplyDeleteUnless it's a satire.
There are various rules of legal interpretation that amount to grammar rules and in application there is often big debates on how to apply them in specific cases.
ReplyDeleteBrett has a bunch of "this is obvious" rules not actually explicitly in the Constitution, which in certain cases clash what the text actually says (or generally is applied to mean). So, again, he's a bad prophet here.
Also, "plain meaning" has various shades so there is reference to a "soft" plain reading rule etc. And, in cases that matter, there is often dispute what plain meaning is anyways, especially again in collection of rules.
Here, e.g., the Constitution has a due process clause. A basic principle of due process for centuries in 1787/91 is that a person could not be a judge of their own case. Thus, Mark references Lord Coke. Certain rules of due process were expressly enumerated for extra security, but this doesn't mean the others are lacking. The Ninth Amendment itself counsels otherwise.
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ReplyDeleteBrett: I've seen this sort of reasoning before. It makes me want to tear my hair out.
ReplyDeleteWe share the same concerns about courts using judicial review as a pretext to erase or rewrite the Constitution. However, this hypo is not one of those cases.
Chief Justice is not a constitutional office and is only referred to in passing in one of the Impeachment Clauses. Article II grants the POTUS the power to appoint members of the Supreme Court, not the Chief Justice in particular.
Congress has the power under the N&P Clause to flesh out the Supreme Court, including creating and directing how people are chosen for the office of Chief Justice. Congress chose to allow the POTUS to nominate a Chief Justice and also chose to allow the next most senior member of the Court serve as Chief Justice when the Chief Justice leaves the Court. 28 U.S.C. § 3.
in order to interpret an ambiguous or unclear provision of the Constitution, we have no choice but to look to principles and arguments outside the language of the document itself.*" >> To be clear, I'm not "missing" this critical principle, I'm disagreeing with it.
Two legitimate applications of Mark's argument:
Most constitutional provisions are unambiguous and quite categorical. The courts can and should apply the original meaning and occasionally grammar of the words and phrases in the Constitution. Basic cannons to interpret the law fall under thus rule.
In the very few cases where the Constitution offers an undefined general term without an original meaning like "due process," it is basically allowing Congress to define the term through rules of procedure.
I see the "Stephen" typo was done various times including by the Federalist Society so the two are in good company. As usual, a GM thread results in interesting splits.
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ReplyDeleteArmy LTC Vindman's testimony before Schiff's show trial is going worse for the Democrats than even I expected.
ReplyDeleteWe knew from his secret testimony in Schiff's SCIF that Vindman admitted the call transcript was a "very accurate" rendition of the statements of Trump and Zelensky and he claimed he was not the "whistelblower" and he did not know the identity of the "whistelblower."
Subsequent reporting identified the "whistleblower" as a Democrat operative named Eric Ciamarella, who works for the CIA and was removed from the White House for leaking to the Democrat media.
As expected, Vindman confirmed publicly that the telephone transcript was accurate, gutting nearly all the Democrat and bureaucrat misrepresentations of that call.
However, Vindman has possibly perjured himself three times this morning:
(1) Vindman (and Schiff) admitted knowing the identity of the "whistleblower" when Vindman testified he discussed the call with two persons, but refused to identify the other "member of the intelligence community with a need to know." Schiff and Vindman's attorney ordered Vindman not to answer any questions about this unidentified person in order to protect the identity of the "whistleblower." Rep. Jim Jordan (R) followed up with the obvious question: If Vindman and Schiff do not know the identity of the "whistleblower," why are they concealing the identity of this person to protect the indentity of the "whistleblower?" Schiff refused to answer Jordan's pointed question.
(2) Vindman claimed in secret testimony that Trump "demanded" Ukraine investigate the Bidens during the call which he overheard, but the transcript he confirmed was accuarate shows Trump made no "demand" of Ukraine.
(3) Vindman proclaimed today that he was the primary advisor to the POTUS concerning Ukraine, then was forced to admit he never spoke to Trump.
LTC Vindman is a lying disgrace to the uniform he is wearing today.
My question is why the hell didn't Vindman's high powered Democrat attorneys scrub their client's opening statements for accuracy and warn his client about obvious perjury traps. Maybe they believe their client is simply above the law?
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ReplyDeleteOf course when reading Bircher Bart's deceptively presented, poorly reasoned/considered propaganda in this or any potentially partisan topic you are getting either the propaganda and/or deranged confusion of someone whose intellectual ('the WMDs were found! I guarantee a Romney win!') and moral ('I would support Trump if he murdered someone'') senses have been corroded by conspiracy theory partisan extremism.
ReplyDeleteMr. W:
ReplyDeleteIt gets better.
Vindman claimed in secret testimony that he reported his "concerns" about the Trump Zelensky call to his chain of command. During Jim Jordan's cross examination, Vindman admitted he never told his boss, but did tell his attorney, his brother and the man who shall not be named everyone knows is the "whistleblower" Ciamarella.
Vindman also claims he (and not the POTUS) set US policy towards Ukraine and newly elected Ukrainian president Zelensky offered to make him the Ukrainian Minister of Defense. What on Earth was Vindman telling Ukraine on behalf of the US and himself during this time?
You don't have to believe me. Everything I noted is from Youtube video clips of Vindman's testimony.
If then POTUS is reelected and Barr decides to move on, Trump could do far worse than to make Rep. Jim Jordan his Attorney General. Outstanding work as the POTUS's unofficial attorney at the Schiff show trial.
There's no doubt that in the very narrow sense, of course there's a plain meaning rule. So if, for instance, Congress passed criminal law banning vaping, retroactive to 6 months ago, that would be unconstitutional. There's an obvious plain meaning of the ex post facto clause.
ReplyDeleteThe problem is that very few contested cases are actually controlled by plain meaning. Congress doesn't deliberately pass ex post facto criminal laws, for instance. And many of the principles that Brett thinks are plain are in fact contested.
Having said that, the best thing to do in a common law legal system when you have an ambiguous text is to start by looking to and rationalizing precedent, not to go digging into the Federalist Papers to generate some law office history about what the slaveholding framers supposedly believed. And precedent has a self-disciplinary effect, which is exactly what folks like Brett claim you can get from the plain meaning.
It's not so much the poor grasp of and selective attention to facts (though there's that, of course) as it is the embarrassingly bad reasoning and subsequent. One shouldn't take too much time refuting someone who is basically a ideological conspiracy theorist extremist, but to take one illustrative example:
ReplyDelete"Vindman has possibly perjured himself three times this morning:
Vindman proclaimed today that he was the primary advisor to the POTUS concerning Ukraine, then was forced to admit he never spoke to Trump."
I guess it never occurred to Bircher Bart that it can both be true that 1. Vindman is the officially designated administration expert on Ukraine and 2. Trump never spoke to him. I mean, reports abound that Trump dislikes and eschews briefings and the bureaucratic experts, and just looking at the quasi-transcript of his call and other statements shows Trump doesn't know a lot about/care about the fine particulars of Ukrainian policy. It's not just plausible that 1 and 2 are both true, it's actually quite likely. But, displaying the classical sloppy reasoning of the fanatic and conspiracy theorist (they overlap quite a bit of course), Bart jumps to the unwarranted conclusion that Vindman must have perjured himself because it's inconceivable to him that 1 and 2 are likely true at the same time.
I think the Brett's of the world can just argue: well, this isn't ambiguous, not in the slightest. It says Chief Justice, plain and simple.
ReplyDeleteTo me the answer has been given: there'a a plain meaning rule but there's also a rule about avoiding absurdities.
Another broader way to say it (that I think Joe referenced iirc) is to invoke Breyer's idea that good rulings don't just use text but also use concerns about intentions, function and results.
Well, one obvious way to resolve it is to appeal to the long tradition of "acting" officeholders.
ReplyDeleteFor instance, before Mark Esper (no relation, to my knowledge) was confirmed as Secretary of Defense, he was acting Secretary of Defense. Nobody doubts that he had the right to attend cabinet meetings, issue directives to military generals, etc., even though he hadn't yet been confirmed by the Senate.
So if you have a situation where the Chief can't serve, the Court can surely designate an acting Chief to go handle the trial. (And since the same Supreme Court could then go ahead and hold their designation of an acting Chief to be constitutional, I think this is exactly how it would go.)
ReplyDeleteMy suggestion is to have Stephen Breyer preside. People are saying Roberts is biased [this whole thing is a bit tongue in cheek, so don't take that seriously]. But, Thomas surely is -- for Trump.
By the way, this is silly. It is assumed that any presiding Justice over an impeachment trial would carry some bias- they are all members of political parties after all. The point is simply that you don't want a politician (and especially not the Vice President) in that role.
The role is largely symbolic anyway, as the Senate can overrule rulings it doesn't like. Justice Thomas would do a fine job presiding over an impeachment trial, as would Chief Justice Roberts. And there's no reason to think that Steve Breyer would be any less "partisan" than any of the others.
BD: Vindman has possibly perjured himself three times this morning...Vindman proclaimed today that he was the primary advisor to the POTUS concerning Ukraine, then was forced to admit he never spoke to Trump."
ReplyDeleteMr. W: I guess it never occurred to Bircher Bart that it can both be true that 1. Vindman is the officially designated administration expert on Ukraine and 2. Trump never spoke to him
LTC Vindman is WAY down the chain of command from the POTUS and part of a multi-agency Ukraine group. In DC, light bird colonels fetch coffee, they do not set foreign policy.
It's so strange having listened to LTC Vindman and then seeing Bart's take on it. It's obvious that Bart, and those like him, have no interest whatever in actually paying attention to what is said, except with the intent to find whatever crevices and cracks they can squirm through to maintain their epistemological closure.
ReplyDeleteI very well might have referenced Justice Breyer's summary, reading his books (such as "Active Liberty") and respecting his take. Here is one excerpt:
ReplyDeleteThey read the text’s language along with related language in other parts of the document. They take account of its history, including history that shows what the language likely meant to those who wrote it. They look to tradition indicating how the relevant language was, and is, used in the law. They examine precedents interpreting the phrase, holding or suggesting what the phrase means and how it has been applied. They try to understand the phrase’s purposes or (in respect to many constitutional phrases) the values that it embodies, and they consider the likely consequences of the interpretive alternatives, valued in terms of the phrase’s purposes.
"They" appears to be the average judge.
ReplyDeleteThey read the text’s language along with related language in other parts of the document. They take account of its history, including history that shows what the language likely meant to those who wrote it. They look to tradition indicating how the relevant language was, and is, used in the law. They examine precedents interpreting the phrase, holding or suggesting what the phrase means and how it has been applied. They try to understand the phrase’s purposes or (in respect to many constitutional phrases) the values that it embodies, and they consider the likely consequences of the interpretive alternatives, valued in terms of the phrase’s purposes.
That's not what an average judge does. And Breyer, who knows this, is lying. It's what he WANTS an average judge to do.
What an average judge does is (1) look for any precedents that might control the case, (2) look for clear statutory language that might control the case, (3) reason from whatever persuasive precedents exist, (4) look at history and other interpretative metrics to the extent that she has clerks who can look it up, or the lawyers point her to it.
And with respect to (4), that's a very important point. Supreme Court justices have unlimited resources to do their forays into (selective) history, Your average judge doesn't have any of that. What she needs is a case holding she can follow.
Breyer's been a pretty good Supreme Court justice (and was an excellent law and economics scholar before that). But his attempts at a judicial philosophy have been pathetic and terrible.
I won't bet my non-existent farm over it, but if Thomas is a wee bit more biased than the average bear here given his political beliefs (and I didn't say just him either), it wouldn't surprise. I reckon Justice Thomas would do a good job (it even might be better realpolitik-wise; arguments can be made there).
ReplyDeleteBut, my comment didn't deny this. It spoke of what people would think. That is appearance of impropriety, which is likely to be somewhat subjective. I guess some might fear a tiny bit that Thomas has the sort of doctrinaire takes on things that his rulings (after all it is only "largely" symbolic ... the presiding officer isn't a TOTAL potted plant) might marginally at least be more likely to be problematic somehow.
Anyway, I hold to my comment -- Justice Breyer seems to me to be the most above the fray minded type of the bunch, seeing things through his civics glasses. But, Rehnquist did a fine enough job of it last time, so my comment shouldn't be taken too seriously. Perhaps, I should have added something about it being a bit tongue in cheek.
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ReplyDeleteI won't belabor this aside. The reference to clerks is amusing in context given Breyer is known to repeatedly reference his clerks looking up things.
ReplyDeleteC2H5OH said...It's so strange having listened to LTC Vindman and then seeing Bart's take on it.
ReplyDeleteI could give less than a damn what any of these witnesses believe about Trump, his practices or his policies. Voters decide whether candidates should be POTUS in elections.
The Democrats claim to be running an impeachment inquiry. Their allegation is Trump told Ukraine they would receive military aid only if they conducted an investigation of and provided Trump with "dirt" on the Bidens. They charge these facts constitute the high crime of bribery.
Therefore, this criminal defense attorney is watching for (1) a witness testify that they personally observed Trump make this demand of Ukraine and (2) evidence concerning then reliability of the witness. I know this is a quaint concept in this neighborhood, but I am looking for actual evidence.
So far, the Democrat witnesses (1) either have no personal knowledge of or are contradicting the alleged facts, (2) admit they did not observe anything they would consider bribery, and (3) are repeatedly being caught making false or contradictory statements under oath.
Of course, the Democrat media is showing none of this. Instead, they reliably regurgitate party talking points like the partisan propaganda outlets they are.
I look at this exercise normally reserved for enemies of the state under totalitarian governments and wonder if I still live in America.