December 14, 2006
Whither the Senate? Posted by John Steele Gordon at 03:35 PM EST Senator Tim Johnson, Democrat of South Dakota, was stricken yesterday with bleeding on the brain and is in critical but stable condition this morning after several hours of surgery. His prognosis is uncertain. This would be only a personal tragedy except for politics. If Senator Johnson is unable to continue in office, his replacement until the next general election will be named by South Dakota’s governor, who is a Republican. Presumably (he would be under titanic pressure from his party) he would appoint a Republican. This, in turn, would shift the balance in the new Senate from 51-49 in favor of the Democrats to a 50-50 tie. Thus Vice President Dick Cheney would cast the tie-breaking vote, certainly in favor of the Republicans, and they would then control the Senate for the next two years. This brings up other possibilities. Modern medicine saves many lives that would otherwise be lost (Senator Johnson’s included, let us hope). But it often makes it possible to sustain life, or at least the shadow of life, without restoring a capacity to function. Almost a year ago, for instance, Prime Minister Ariel Sharon of Israel was felled by a massive stroke, and he has never regained consciousness. Prime ministers serve at the pleasure of their parliaments, and Sharon was quickly replaced. But Presidents, senators, and congressmen in the United States are elected to fixed terms. When Woodrow Wilson suffered a stroke in 1919, his wife functioned in many respects as the President, and it wasn’t until the Twenty-fifth Amendment was adopted in 1967, almost 50 years later, that the Constitution dealt with the problem of a President who was alive but unable to fulfill the duties of his office. There is still no way to deal with an incapacitated senator or congressman if he or she is unable or unwilling to resign. Senator Karl Mundt of South Dakota refused to resign after a stroke in 1969, although he was incapable of attending either committee meetings or the Senate as a whole. He remained in the Senate for three years after becoming unable to function as a senator. It would be possible for a comatose senator to be in office for as long as six years and there would be nothing that could be constitutionally done about it. It seems clear that this needs to be addressed. Individual members of Congress could deal with it by writing what would be in effect a conditional letter of resignation, and perhaps some have done exactly that. Otherwise it will require a constitutional amendment. Another matter that requires fixing is presidential succession, although it was partially addressed by the Twenty-Fifth Amendment, which established a procedure for appointing a new Vice President if one dies or succeeds to the Presidency. (Had it not been in place, Richard Nixon would have been succeeded by Carl Albert, Democrat of Oklahoma, upon his resignation from the Presidency, not Gerald Ford.) Congress is empowered by the Constitution to designate who shall succeed to the Presidency if there is no Vice President to do so. From 1792 until 1886 it was the president pro tempore of the Senate, followed by the speaker of the House. In 1886 the members of the cabinet, in order of the creation of the various departments, were designated, making the secretary of state second in line. In 1947 it was changed again, making the speaker first after the Vice President, then the president pro tempore, and then the cabinet. New cabinet positions were added to the list as they were created, except for the secretary of homeland security, who is still not in the line of succession. The speaker of the House holds his position by election of the membership, and competition for the immensely powerful job is intense, ensuring that the speaker will always be capable of serving. But for many years now the president pro tempore of the Senate has been the longest-serving senator of the majority party, and the position is essentially honorary. This means, inevitably, that the president pro tempore will be elderly. Right now that is Senator Ted Stevens of Alaska, who is 83 and has been in the Senate for 37 years. Assuming the Democrats control the next Senate, the president pro tem will be Robert Byrd of West Virginia, who is 89 and has been in the Senate since 1959. Senator Strom Thurmond, Republican of South Carolina, was in his late nineties when he served his third term as president pro tempore and was quite incapable of handling the duties of the presidency. While it is unlikely that both the Vice Presidency and the speakership would be unfilled when the Presidency was vacated by death, resignation, or debility, it would only be sensible to make the majority leader of the Senate—the functional equivalent of the speaker of the House—third in line, followed by the cabinet. Meanwhile, may Senator Johnson recover fully and speedily.
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