Ed. Note: Today's edition of We Answer Your Political Questions is a two-fer. Both have answers rooted in Article Two of the U.S. Constitution.
Let's take a look:
Dear Spencerian Editors:
What is the law associated with replacing a Supreme Court Justice between an a election and the inauguration. i.e If for example John Paul Stevens should die between November 4th and the inauguration of a new president could Bush make a speedy recess appointment against the advice of the President elect i.e Obama?
I understand that that a recess appointed Justice can only sit until the next sitting Senate but is there anything preventing Bush from appointing a strict constructionist / conservative to the bench and then the court decide to rush a review and a ruling over turning Roe vs Wade? I realise very little chance but but piped my interest as perhaps should a tragedy like this occur it would it present Bush with a opportunity to rehabilitate his currently disastrously negative legacy?
With thanks,
Graham D.
Dear Graham:
Fantastic question. Thanks for asking.
I've said a number of times on this very blog that I think one of the worst legacies George W. Bush leaves us with will be the neocon bottom-feeders who will dwell in our nation's capitol for years and years to come.
A recess appointment to the Supreme Court would be the rotten cherry on top of that sickening cake.
First of all, let's hope that this scenario doesn't in any way play out. I covered Esquire's endorsement of Obama on these pages, and they had it exactly right:
John Paul Stevens was born on April 20, 1920, into a family of hotel magnates in the city of Chicago who, when Stevens was still young, lost everything in the Great Depression. In 1936, when John Paul Stevens was a student at the University of Chicago Laboratory School and preparing to enter the University of Chicago proper, Barack Hussein Obama Sr. was born on the shores of Lake Victoria in Kenya. In 1941, when John Paul Stevens was graduating Phi Beta Kappa and preparing to go and break Japanese naval codes and help shoot down Admiral Yamamoto in the South Pacific, Ann Dunham was born in Fort Leavenworth in Kansas. In 1961, when John Paul Stevens was practicing law, Barack Obama and Ann Dunham married and had a son, whom they also named Barack Hussein Obama. In 1975, when President Gerald Ford named John Paul Stevens to replace William O. Douglas on the United States Supreme Court, the elder Obama was long gone and the younger Obama was a freshman at the Punahou School in Honolulu. In January of 2009, if and when Barack Obama is inaugurated as the forty-fourth president of the United States, Associate Justice John Paul Stevens will be closing in on his thirty-fourth year on the Court and his eighty-ninth year on earth. And there, really, you have it. The best argument for the election of Barack Obama as president of the United States iswritten quite clearly in the peaks and squiggles of John Paul Stevens's EKG.
So here's to your good health, Justice Stevens.
But let me answer your first question, with respect to the law governing appointments. You want to look up Article 2, Section 2, Clause 3 in the U.S. Constitution. It says:
The President shall have power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.
It's pretty clear.
Now, with respect to the second part of your question -- Bush doesn't have to take the advice of Obama. Obama, not being sworn in between Election Day and Inauguration Day, would have no power here. Sure, it'd be nice if Bush checked in with him, but the odds of that are about as good as me rooting for the Phillies to win the World Series (Let's go Rays!).
Anyway, Bush is a guy with a legacy on his mind. And right now that legacy is circling the commode. He is also a guy who has done nothing but play to "the base." So if our nightmare scenario were to play out, we could guess that he'd do everything he could to appoint -- via recess, sure -- some idealogue so right wing, he'd make Scalia look like Ted Kennedy. If there was even a chance they could overturn Roe v. Wade, he'd do it.
That being said, I believe there are some procedural techniques that Harry Reid and the Senate -- the Democratic-lead Senate -- could employ, here. First, a recess appointment requires the Senate to be in recess.
What if they weren't? Reid could just call them into a special session.
Also -- and here's where I have to give credit to some moderates on the other side -- I'm not so sure that Republicans like Orrin Hatch and Arlen Specter would necessarily approve of a recess appointment to the court. Granted, they're both pro-life, but I think they appreciate the larger implications of the appointment of what would amount to a temporary Associate Justice just to overturn some established laws, like Roe.
Look, Graham -- I'm not going to tell you that your scenario is not possible. It is. But it seems, as you say, a slim chance. Our best hope is to elect Obama in a week, and make it to January 20, 2009. We'll all sleep a lot better then.
Part Two
Dear Spencerian Editors:
About the US presidential election process: if the number of representatives in the house is supposed to change according to the population, shouldn't the number of votes in the electoral college change as well?
And wouldn’t it be more accurate (and fair) if the electoral votes were distributed proportionally according to each state’s election results instead of a winner-take-all votes procedure? Has this ever been brought up or is it “uninteresting” to whichever party is in command?
Thanks,
Albert D.
New York, NY
Dear Albert:
Thanks for your very good question as well.
Let me try the short answers first: Yes, yes, and yes (to the "uninteresting" part on your last question).
Once again, we are guided byArticle II of the U.S. Constitution, Clause 2, which discusses choosing electors.
Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.
Hm. Well, actually, it looks like the Electors are in direct proportion to the number of Senators and Representatives -- equal to the whole Number of Senators and Representatives...
With regards to the "winner-take-all" question, I agree there, too, I suppose -- remember that Maine and Nebraska break their up to a degree.
But I have to tell you, Albert, I disagree with the larger premise. The Electoral College is a failure. I think Election 2000 proved that. Don't you? If we'd run this thing like common sense tells us to run it -- looking at the popular vote -- in 2000, we'd have been talking about a President Gore, by more than half-a million votes.
I agree that once leaders get in office, they tend to overlook things like election reform, something we need desperately in this country. One of my hopes for a President Obama is that he will draw a lesson from his uneccessarily bruising primary season and think about how to change the system entirely.
The National Archives has a really good FAQ on the Electoral College you'll want to check out, too.