As is often the case, it has taken a tragedy (the sudden incapacity of Senator Tim Johnson) to highlight a problem. In this case, it is how, apart from the Presidency, there is no way to remove (temporarily or permanently) certain high government officials for any reason beyond malfeasance.
Twice in our history, we had presidents who were severely ill while in office, but in neither case was there any provision for their removal from office — even temporarily. Woodrow Wilson suffered a massive stroke during his second term, and his wife (who, fortunately, was up to the task) appointed herself his assistant/substitute and kept the full details of his infirmity from the public. And Franklin Delano Roosevelt’s health declined for five full years, through his last two elections, until the stress of both the presidency and coping with his own disabilities finally felled him.
But it took the assassination of President Kennedy to get the XXVth Amendment passed in 1965, which spelled out in crystal-clear detail not only the line and procedures for presidential succession, but also included measures for dealing with the disability — both temporary and permanent — of a president.
But it took Senator Johnson’s attack — at a time when his single seat in the United States Senate can change the balance of power in that house — to bring to attention that there is very little that Congress can do to deal with the disability of one of its members. In most cases, the absence of a single member in a body of 100 (or, in the case of the House, 435) would not be that big of a deal. For example, during his run for the Presidency, John Kerry missed around 90% of roll calls, and there were very few calls for him to step down. (I am proud to say that I was one of those voices.)
The Constitution, in Article I, Section 5, does give Congress a certain limited power to regulate its own membership. It says, in part, that:
Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Business; but a smaller Number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide.
Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.
This is a power that it has rarely chosen to exercise, and for good reason: it is the sort of thing that is often exploited and abused in other nations. The Founding Fathers chose to make it a very difficult power to use by requiring a supermajority, and that seems a good principle.
As far as the Supreme Court, there are only three ways a Justice can be removed from office: death, resignation, or impeachment. There is a legal way to temporarily or permanently replace an incapacitated Chief Justice, but there is no way to deal with such befalling an Associate Justice.
With that in mind, I think it is time that we set up procedures for dealing with such events. With the advances in medical technology and human longevity, the chances of such things happening are ever-increasing, as we are now able to keep people alive longer, and after horrific injuries and ailments.
My suggestion is simple: by a 2/3 vote of any body, it may declare one of its own members physically incapable of performing the duties of their office and remove them from office, permitting the established procedures covering their replacement to take place. In the case of hte House of Representatives, there will be a special election to replace the Representative. In the case of the Senate, the governor of that state shall appoint a Senator until the next election. And in the case of the Supreme Court, the President shall nominate a new Justice for the Senate to confirm.
Yes, this power could be abused. But I think that the supermajority requirement, along with the possibilty that a wrongly-removed official could simply run to succeed themselves in office (and, if wrongly removed, have a healthy dose of public sympathy working in their favor), would go a long way towards preventing such incidents from happening.
I’m not enough of a legal expert to know if this would require a Constitutional amendment, but my first impression is no. There is already existing law governing the disability of a Chief Justice on the books that didn’t require an amendment, so extending the same principle to an Associate Justice shouldn’t be that big a deal. And the Constitution gives each House the power to remove its own members already, for malfeasance; this is also a logical extension of existing powers.
Naturally, I (along with many others) are hoping for Senator Johnson’s recovery. Speaking personally, I don’t recall having much of an opinion (or even knowledge) of him prior to his attack, but that works in his favor with me; it seems the more I know about a member of Congress, the more I am likely to dislike them.
But his illness has brought to light a weakness in our system of government, and we ought to address and resolve it while it has everyone’s attention.