Line of succession: Senate Democrats overthrow tradition in a victory for common sense

At the start of the new Congressional session, we saw an event occur that hasn’t happened in more than 70 years. Thanks to the Republicans’ disastrous attempts to elect a speaker of the house, this historical development has been pretty much ignored. The Democrats named Patty Murray as Senate president pro tempore, the third in line for the presidency after the vice president and the speaker of the house.

Murray’s ascension to the mainly ceremonial role received some coverage, due to the fact that she is the first woman to occupy the job. But that was not the achievement.

According to a long-standing Senate tradition, the president pro tempore is the longest-serving member of the majority party. The last Senator who was not the longest-serving majority party member to hold the post was Arthur Vanderberg, who left in 1949.

Based on this tradition, Murray should not have been elected to the job. Instead, Sen. Dianne Feinstein (D-Calif.), who entered Congress two months before Murray due to a special election victory, should have moved into the position.

There are open questions of whether Feinstein, who has been the focus of questions about her cognitive abilities, declined to run or was instead, as reports have suggested, pushed by senior Democrats who were not going to nominate her for the position.

With Feinstein facing significant questions of her acuity, it may seem like this would be an obvious decision, but as recent history shows very clearly, this is not the case. Instead, Democrats took a much needed, and long-delayed, leap forward for Congress in trying to avoid a potential problem in a worst-case scenario situation.

In recent years, both parties have chosen president pro tempores who were very clearly incapable of performing the job of president — or any job whatsoever, really. In 2001, 99-year old Sen. Strom Thurmond (R-S.C.) held the job for Republicans. At the same time that he was in line for the presidency, the Republicans effectively removed Thurmond from the role as chairman of the Senate Armed Services Committee because of his mental decline. The Democrats had the same event happen, as 92-year-old Sen. Robert Byrd (D-W.Va.) served as president pro tem in 2010, after being nudged out of his job as the powerful chairman of the Appropriations Committee. Both were removed from these positions because of a demonstrated lack of ability, but — remarkably — that didn’t take them out of the line of succession for president.

The other president pro tems this century have not been young, as only one was under 80 when they took the position. If the Republicans had gained control of the chamber, it is clear that 90-year-old Sen. Chuck Grassley (R-Iowa) would have taken the job without much controversy.

There have been discussions, especially following 9/11, about the line of succession. It has changed repeatedly over the years. Until 1886, the Senate president pro tem was second in line, which was changed to put the Secretary of State and other cabinet members ahead of Congressional officials. That law itself was changed in 1947, which also put the speaker of the house in the first slot, followed by the Senate president.  The Continuity of Government Commission has promoted the idea of returning to the 1886-1947 law that put cabinet members first, as it would prevent the president’s party from losing power due to a death in office.

There are actually real reasons to be concerned about the line of succession. Most critically, attempts to take out multiple players in government at once is more than just a TV show. In 1865, there was an attempted decapitation strike against the leaders of the federal government, with President Abraham Lincoln assassinated, Secretary of State William Seward stabbed and incapacitated, and Vice President Andrew Johnson and Gen. Ulysses S. Grant targeted. Having someone in place who can take on the role at critical moment is important.

Furthermore, in the best of times, we may have problems with succession. For example, the 25^th Amendment, which allowed the selection of a vice president in case of a vacancy in that office, may seem to have been a solution. After all, presidents have found themselves without a vice president 18 times in U.S. history, equaling a span of 38 years. But, as we are seeing right now with Congress, it may be difficult if not impossible to get Congress to agree on a replacement VP, especially if the other party controls the government. What would happen in the worst of times?

It may make sense to change the law of the line of succession. But it is certainly clear that Senators should make sure that the role of president pro tem is filled by someone who could handle the job.

Senate president pro tempore may not be viewed as an important position, but in reality, it could become one in a time of extreme stress. By bypassing an official who doesn’t appear able to hold the job, the Democrats seem to have done the nation a service. Hopefully, Senators move off from a blind tradition of seniority and follow this path in the future.

Joshua Spivak is the author of “Recall Elections: From Alexander Hamilton to Gavin Newsom.” He is a senior fellow at the Hugh L. Carey Institute for Government Reform at Wagner College. He also writes the Recall Elections Blog.