Line of succession

"To the extent that Constitution worship is America's secular religion,"1 Sandy Levinson is a heretic. But even a broken clock is right twice a day, and Levinson's column in TNR is probably right. Arguing for reform of the Presidential line of sucession (3 U.S.C. §19), he avers that

[u]nder present law ... the person two heartbeats away from the presidency is the speaker of the House, with the president pro tem ... next in line. Only then does the right of succession go to the secretary of state. It requires no denigration of either Speaker Pelosi's or Senator Byrd's abilities to fill the office of president to note that it is a truly terrible idea that death in the White House might lead to a change of party and not only a change of person ... To couple a change of person with a change of party has the potential for generating political chaos, not to mention the possibility of generating all sorts of suspicions of conspiratorial nefariousness on the part of those with such inclinations.

Levinson adds that "[t]here is really nothing to be said for such a possibility," which I take to mean the specific hypothetical he envisages, rather than the sucession through various officeholders in the abstract. That may be so, although in the latter case, the argument for the status quo is obvious: the Speaker of the House is arguably the next most democratically-selected official in the Constitutional system. In theory, any single Senator represents more than any single Representative, but the President pro tem usually holds his or her office by virtue of longevity in office rather than conspicuious merit (a point driven home more than adequately by the two men who are respectively about to cede and gain the position). The Speaker of the House, on the other hand, gains their authority not from their constituents per se, but from their winning the support of a majority of the people's house, the closest to a political microcosm of America that is available in the normal course of business. Thus, the line of succession, as presently constituted, elevates the principle (viz., that a President should have faced the voters in some manner) over the practical (i.e. working through the ranks of the executive branch).

The real potential for abuse, I would argue, is that placing third in line the officer who has the most to say in whether or not a President is impeached: the Speaker of the House. An ambitious Speaker backed by a party who loathes and despises both the President and the Vice President (chance would be a fine thing) thus has one extra inducement to push through impeachment procedings: the prospect of personal elevation. So perhaps the President Pro Tem and the Speaker should switch places? Certainly, there is an argument that this, too, upsets balance of powers, insofar as the President Pro Tem, if s/he commanded any real authority in the Senate, might be unduly influenced to seek removal from office in an impeachment trial. But that's a big and unrealistic "if"; the Speaker wields bestrides the House of Representatives like a collosus, while the President Pro Tem - if he's lucky - occupies an honorarary position where he is first among equals if he is anything.

None-the-less, these are essentially dilatory points. Let me do the horrible thing that must be done and get it over with. I (reluctantly) think Levinson's probably correct that it should be changed; given the balance of mischiefs on both sides, he probably identifies the lesser evil.

Post facto:
Line of succession, redux (7/28/08)

1. 1. M. Horwitz, The Meaning of the Bork Nomination in American Constitutional History, 50 U. Pitt. L. Rev. 655, 663 (1989)