September 29, 2005
Life Tenure Starting...
September 29, 2005 02:51 PM
Almost immediately after the Senate voted to confirm John Glover Roberts as the 17th Chief Justice of the United States, AP and other news sources ran stories stating that Roberts had "became the 17th chief justice of the United States Thursday, overwhelmingly confirmed by the Senate to lead the Supreme Court through turbulent social issues for generations to come." Even a cursory reading of Marbury v. Madison will inform the gentle reader that a person does not assume a post until the President signs a commission. The President may very well have signed Roberts' commission as soon as the Senate voted, but I somehow doubt that. Nitpicking? Yes. Moot now that Chief Justice Roberts has taken his oath of office? Definitely. But I wouldn't be a genuine law geek if I didn't point this out.
And yet I take it that that part of Marbury is even shakier than most of the rest of it. If you don't hold your office until the president signs your commission, then why can the president be mandamused into doing so?
If you don't hold your office until the president signs your commission, then why can the president be mandamused into doing so?
Isn't the fact that the president can be mandamused into signing the commission an indication of the necessity of the signed commission? If it's not necessary to your taking office, why bother getting the writ?
The mandamus in Marbury was for Secretary of State Madison to deliver the signed commission. To the best of my knowledge there has never been a case where a party requested a mandamus against a president to sign a commission.
Regardless, PG's point stands. I don't think the Chief could have taken the Senate roll call to the SCOTUS to take up his seat.
I agree with PG that the mandamus remedy was unnecessary in Marbury. Another fault.
At any rate, why would the Chief have to "take" anything anyplace? He could just swear his oath and march into One First Street and start presiding.
As long as he has a signed commission from the President, yes, he most certainly can do that.