by Sanford Levinson

I have on several occasions railed against what I regard as basic defects in our constitutional order. Here I want to focus on a decidely "non-constitutional" defect that is every bit as serious, which is the present Succession in Office Act establishing who would succeed to the presidency in case there is no vice president. Under present law--which, I should note, frequent TNR contributor Akhil Reed Amar believes with good reason to be unconstitutional (though it is inconceivable that a Court would actually so hold after the succession had taken place)--the person two heartbeats away from the presidency is the speaker of the House, with the president pro tem--soon to be West Virginia's Robert Byrd--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. This, of course, was also the situation during many other other presidencies. Newt Gingrich, for example, was next in line to Al Gore for most of the Clinton presidency. There is really nothing to be said for such a possibility. It would be destabilizing enough for the country to face a new president following the death, resignation, or impeachment of a president and vice president. 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. It is unclear why either Democrats or Republicans would actually prefer the present arrangement, given the reasonably high odds of "divided government." This is the perfect time for Speaker-designate Pelosi to announce that she will sponsor a bill, ideally with the outgoing Speaker Dennis Hastert, to revert to the older Succession in Office Act that was replaced in 1947 with the present one. This would indeed make Condoleezza Rice the designated successor were the vice presidency vacant. It would represent an act of high statepersonship and, as much as any single act could do, establish that she means it when she describes the arrival not only of new leadership, but a new public-spiritiedness to replace naked partisanship.