The Onion is Right. Thanks to Justice Sotomayor, there will constitutionally be two Vice President Bidens.
A friend asked about what impact the 20th Amendment has Justice Sotomayor’s disappointing decision to reschedule Vice President’s oath from noon (as the Constitution says) till 8 a.m. so she can attend her separation-of-powers-important book signing. Here are my quick thoughts.
The 20th Amendment provides:
The terms of the President and Vice President shall end at noon on the 20th day of January, and the terms of Senators and Representatives at noon on the 3d day of January, of the years in which such terms would have ended if this article had not been ratified; and the terms of their successors shall then begin.
So what happens if Biden is sworn in before his term official ends?
In Marbury v. Madison, Chief Justice Marshall held that the actual delivery of the commission is a mere formality. I think the oath should be viewed in the same way, as a formality. Whether it happens now or later doesn’t really matter. What would seem to matter is the electoral college votes being counted by the President of the Senate.
Article II, Section 1 provides:
The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted. The Person having the greatest Number of Votes shall be the President.
This was amended by the 12th Amendment, but the import is the same.
The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted; The person having the greatest Number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed . . . The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed.
The Vice President’s term becomes legitimate after the votes are counted. And, it cannot begin until the previous term ends, which according to the 20th Amendment is January 20, 2013. So Vice President Biden’s oath will be effective. As Article II, section I provides:
Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:
He just needs to take the oath before he starts his duties. Likewise, Article VI only says that the Vice President “shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.” It doesn’t say when it has to happen.
But, isn’t he still the Vice President from the last oath? His term isn’t over till noon on January 20, 2013.
Indeed, under the Constitution there will be two Vice President Bidens betwen 8 a.m. and noon on January 20, 2013. The Vice President Biden sworn in in 2009, and the Vice President Biden sworn in 2013.
So Biden definitely owes Sotomayor one. As he wrote in his book, “I ain’t the kind of guy who forgets his debts. Next time we meet there’s a tallboy of ice cold Beast on me. And if you’re a lady, I know a few tricks to repay you with interest, if you catch my drift.”
I hear there’s a nice dive bar that Biden likes near the Union Square Barnes & Noble.
Update: Joe Biden continues to prove that the Onion is our finest source of news.
At the beginning of his speech, Biden began praising his soon to be re-inaugurated boss and let slip, “I’m proud to be President of the United States,” before stopping himself as nervous laughter from the audience turned into wild cheers. Biden corrected himself and said what he had intended: “I’m proud to be Vice President of the United States, but I’m prouder to be President Barack Obama’s vice president.”
Let’s take stock. Two Vice President Bidens and one President Biden. That’s a menage a biden.
The origin of this quotation, which I have heard in different varieties, is fascinating, and involves Justice Holmes!
In the early 1860s, Oliver Wendell Holmes Jr., then a brash Harvard undergraduate, wrote an essay criticizing Plato, whose classifications of ideas he found “loose and unscientific.” Holmes sent a copy of the essay to Emerson, whose books, he later said, had “set me on fire.” He soon received in return a nugget of stern wisdom. “I have read your piece,” Emerson replied. “When you strike at a king you must kill him.”
I forget that Holmes was old enough to correspond with Emerson! At the time, Emerson would have been in his 60s (he died in 1882 at the age of 78).
In any event, this old maxim was proved in Bulgaria where a gunman attempted to assassinate the leader of a party, Ahmed Dogan. The would-be-assassin jumped up on the stage, drew a gun, pulled the trigger, but it jammed. It looks like a tiny subcompact from the picture.
Dogan knocked the gun out of his hand, and fled. Then security forces proceeded to kick (literally) the crap out of the gunman for several minutes. So if you are going to shoot the king, don’t jam.
Vice President Biden gave Justice Sotomayor the honor of swearing him in. David Savage and Michael Memoli of the LA Times Reports that Sotomayor has a scheduling conflict and will swear h im in four hours early.
Biden selected Sotomayor, the first Latino justice, to administer the oath. But Biden’s office said Sotomayor had a scheduling conflict Sunday and could not be at the White House at noon.
So Sotomayor will swear Biden in at 8:15 a.m. Sunday at the Naval Observatory, the vice president’s official residence. Chief Justice John G. Roberts Jr. will swear in Obama at noon.
So what was so important?
The Supreme Court did not respond to a question about where Sotomayor would be at that time. But the Barnes & Noble store on Union Square in New York City says she will be talking about her new memoir, “My Beloved World,” at 2:30 p.m. on Sunday and signing copies.
Here are the details of the event:
Signature only, and no personalization.
A book signing? Really? Assuming that she in fact rescheduled on the Vice President for a book signing in New York, I find this to be disrespectful. I’m pretty sure Barnes & Noble is more amenable to schedule changes that the person who is one heartbeat away from the Presidency. And really? To schedule an event the day before the inauguration? Next weekend is wide open at Union Square.
I can’t imagine this went unnoticed in the White House. I would be surprised if she is asked again. In 2008, Justice Stevens swore him in Biden (Stevens got the Oath right).
This also can’t speak well of Sotomayor’s collegiality on the Court. If she is willing to publicly blow off the Vice Presidency, one must wonder how she operates inside the Court. From what we see on the outside, she is fond of writing solo dissents, and is frequently very aggressive during oral arguments. (I think she may over talked over Justice Thomas’s first peep from the bench in nearly 7 years).
In December 2010, Adam Liptak and others, following a great post by Mike Sacks, queried whether Sotomayor would guide the liberal wing of the Court. As evidence of this hope, they cited her solo dissents, strong questioning, and even dissents from denial of cert.
At the time, I disagreed, and thought this evidence cut the other way.
Sure, Sotomayor is vocal on the bench. I’ve attended a number of oral arguments, and anecdotally, I’ve noticed that she tends to ask a lot of forceful questions as compared to her predecessor, and is frequently the first to ask a question. Likewise, she has taken to penning dissents from denial of cert on certain hot-button issues like prisoner rights. She is certainly trying to do something to shake things up. Whether her actions will guide the liberal wing, and presumably shift the Court to the left, is dubious.
The only thing that will shift the Court to the left (other than a retirement) is persuading Justice Kennedy to change his mind [JB: In hindsight add Chief Justice Roberts to that list]. Does anyone think Justice Sotomayor’s brusque questions at oral arguments and dissent from a denial of cert on a case that none of her colleagues found worthy of review on a claim that the court of appeals found “patently frivolous” will make any difference?
For the possible negative consequences of an aggressive Justice, look no further than Justice Scalia. Surely, Scalia’s rhetoric has done nothing to shift Kennedy, and previously O’Connor, to the right. If anything, it has pushed them away. President Bush did not even consider him for Chief for these reasons.
Why would anyone think that Sotomayor doing her best Scalia impression would bring Kennedy to the left? It could even have the unintended consequence of pushing him the other direction, especially with a tactful Chief Justice at the helm of One First Street assigning opinions [JB: Still working Kagan’s vote in NFIB].
Justice Kagan, and her suave, unassuming but persuasive temperament, may represent the Left’s last best hope to persuade Justice Kennedy on the key issues of the day.
I am more convinced of what I wrote after following the Court for two more years. Kagan’s strategery is masterful. Reading through the entire record in the ACA litigation has convinced me that she and Chief Justice Roberts are on a different level as to what they are trying to accomplish on the Court (I’ll elaborate more on that in my book and future writings).
Let’s just hope everyone gets the oath right this time 🙂