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Call it coincidence, but in the same week that a big chunk of marble fell from the front facade of the Supreme Court, a heavyweight panel of thinkers convened in Washington to contemplate what would happen if all nine justices of the Supreme Court were to be killed at once. Speakers had Sept. 11, 2001 and Tom Clancy-type scenarios in mind, not architectural malfunctions. But whatever the cause, the questions raised are substantial, and the solutions elusive. American Enterprise Institute scholar Norman Ornstein, who has been the Paul Revere on such “continuity of government” issues since Sept. 11, acknowledged during the discussion on Nov. 30 that when he first started mulling nightmare scenarios, the Supreme Court was not high on his list of concerns. Ornstein was more worried about a fuel-laden jet plowing into the Capitol during the State of the Union address or, just as scary, a well-placed briefcase nuclear device going off during a presidential inaugural, wiping out the incoming and outgoing presidents as well as most of the line of succession. But the more he thought about the issue, Ornstein said, the more important the Supreme Court became. For one thing, unlike with the other two branches, there is no provision for quick replacement of Supreme Court justices. Members of Congress are somewhat fungible; the stock can be replenished by governors and elections away from a devastated Washington, D.C. As for the presidency, there is a clear line of succession. But there is no such thing as a backup Supreme Court justice. It’s the nine robed ones or no one. More important, Ornstein realized that several of the doomsday scenarios that could be imagined might pose horrific legal and constitutional issues that would need to be resolved quickly by a credible Supreme Court in the wake of an attack. In his Inauguration Day-attack scenario, for example, Ornstein wonders what would happen if, say, the Texas congressional delegation were delayed getting to the ceremony and suddenly wound up being all that is left of Congress. Could it, as a sort of rump legislature, then elect a new majority leader who would instantly become president, supplanting whatever members of the outgoing president’s Cabinet who might have survived? A legal battle could break out between two or more people claiming to be president. Perhaps more realistically, legal issues could arise from whatever declaration of war or suspension of habeas corpus that results from the attack on the nation. Suddenly, Ornstein said, the need to reconstitute the Supreme Court after an attack became “much more urgent” to contemplate if a new government is to have any claim to legitimacy. Ornstein spoke at a discussion sponsored by George Mason University School of Law’s Critical Infrastructure Protection Program and the American Bar Association’s Standing Committee on Law and National Security. A commission sponsored by AEI and the Brookings Institution issued a report in 2003 on continuity issues facing all three branches, but Ornstein reported with disgust that “virtually nothing” has been done by policy-makers even though four years have passed since Sept. 11. He favors an arrangement whereby the chief judges of the federal circuits would be pressed into service when membership of the Supreme Court falls below the quorum of six justices. George Mason professor Ross Davies offered some ingenious solutions that would require passage of statutes expanding the size of the Supreme Court. But Davies was not suggesting an FDR-style Court-packing scheme. Congress can, by statute, set the number and qualifications of Supreme Court justices, so Davies suggested the appointment of several justices with one extra qualification: They would serve only if the Supreme Court drops below a quorum. Alternatively, retiring justices like Sandra Day O’Connor could keep their positions but would be recused from their duties unless the Supreme Court drops below a quorum. Short of these weighty and controversial measures, Davies also suggested short-term steps to reduce vulnerability, such as encouraging justices to work at home or in non-D.C. locations when possible, in order to limit the number of occasions when all nine justices are in one place. But Ornstein said the resulting loss of face-to-face contact and collegiality might be too high a price to pay. James Duff, managing partner of Baker Donelson and former administrative assistant to the late Chief Justice William Rehnquist, also spoke, reviewing several options that have been advanced to cope with a decimated Supreme Court. The use of chief circuit judges as an emergency Court would probably require a constitutional amendment, Duff said, unless it is constituted by Congress as an actual court unto itself. Another idea Duff mentioned that would also require amending the Constitution is appointing a “reserve” or “junior varsity” Supreme Court that would be ready to take the place of the justices after a catastrophe. The downside of these options, Duff said, is that the public might question the legitimacy of these substitute courts and their rulings. In the end, Duff endorsed the status quo as the best solution, though it relies on the ability of the other branches to reconstitute themselves quickly so that a president could appoint new justices and a Senate could rapidly confirm them in the conventional way. In the aftermath of a disaster, Duff predicted the president and the Senate would act quickly and responsibly to confirm a new Court that would not be overly partisan. Duff and John Cooke, the deputy director of the Federal Judicial Center, pointed to an additional concern if the entire Court were to be wiped out. By statute, the chief justice, or the most senior associate justice in his place, has substantial administrative power over the judicial branch. For example, Cooke said that only the chief justice is authorized to reassign lower court judges to different courts — the very task that might be necessary if, say, the judges of the D.C. Circuit or the D.C. district court were wiped out in the same attack. If the entire Supreme Court were gone, no real or acting chief justice would be around to make those reassignments. Cooke, too, felt that in the end “we could get a Supreme Court fairly quickly” the traditional way if the president and the Senate were able to re-establish themselves expeditiously after an attack. But on one point, all the panelists agreed: All three branches of government must resume their post-Sept. 11 debate over what to do if the unthinkable happens. “It is irresponsible,” Ornstein said, for policy-makers to leave the public without “an insurance policy” against the loss of the federal government’s leaders.

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