Could Justice Thomas Substitute for Justice Roberts in an Impeachment Trial of President Trump?

Over at Balkinization, Josh Blackman and Seth Barrett Tillman have a long post addressing an unlikely problem: “Could Justice Thomas Preside over President Trump’s Impeachment Trial?” The issue would only arise, of course, if Chief Justice Roberts were to be unavailable for some reason – such as death or disability. Blackman and Tillman note that Chief Justices Chase and Rehnquist did in fact die within a few years of presiding over the impeachment trials of Andrew Johnson and Bill Clinton, so there is some reason to discuss the hypothetical of Roberts’s unavailability (despite his evident good health). If no one can sit in for the chief, an impeachment trial could not proceed.

According to Blackman and Tillman, Justice Thomas, as the senior associate justice, could step in for the missing Roberts. It takes them a long time to reach that conclusion, invoking parallels to Constitutional provisions for replacing the Speaker of the House and the President Pro Tempore of the Senate.

In a later post, Gerard Magliocca gets to the same conclusion more quickly, making a structural argument. If the Chief Justice position is empty, Magliocca points out, only the president can nominate a successor. In the absence of replacement, presidents could therefore prevent their own impeachment trials, simply by declining to nominate a new chief. “That can't be right,” he explains. “The President cannot possess the power to halt his own removal through inaction.” Magliocca recognizes that structural arguments are divorced from traditional legal authorities, “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.”

I don’t disagree with any of this, but 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 am not a constitutional law scholar, but I do not see why this statute requires more justification than any of the other statutes regarding the composition of the Supreme Court. Congress has the Constitutional authority to specify how the office of Chief Justice is filled (and presumably could even make it a rotating position, as is done in many states). And in this case the statute is unambiguous, providing for the senior associate to assume all of the “powers and duties” of the chief whenever necessary.

And one more thing. The Senate has the sole power to conduct the trial, which is non-justiciable according to the SCOTUS decision in Nixon v. United States. So the Senate’s acceptance of an acting chief would be conclusive and unreviewable. A problem would arise only if the Senate were to reject the acting chief justice, which would also be non-justiciable. But in that situation -- with a majority of the senators refusing to proceed -- there obviously would never have been a conviction, anyhow.

Perhaps I have missed something, but why make it more complicated than that?

 

[NOTE: This item was briefly posted in error a few hours ahead of schedule. This iteration has been slightly expanded and edited.]

Comments

[Jennifer S Hendricks]

Ouch.

[anon]

What if aliens land in Washington, and declare Trump to be their most admired human? One would suppose that the well-known maxim "locuta est ad aliena" would apply, but then, as Lubet has noted, the Senate has certain (not plenary) non-justiciable prerogatives. If the Supreme Court would not hear the case to decide the proper application of the separation of powers (terrestrial v. extra terrestrial), then who would decide? My vote: Rachel Maddow.