The Pence Oath

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The New York Sun

News that Vice President-elect Pence will be sworn into office by Justice Clarence Thomas strikes us as a missed opportunity. Not that we lack for regard for either of them; we endorsed Mr. Pence and have backed Justice Thomas through every one of his heroic struggles. We hope he has many more years on the High Bench. Then again, too, we’re not one hundred percent comfortable with the practice of pledging politicians with a justice who is politically aligned. It would be better were Mr. Pence to be sworn by, say, Justice Ruth Bader Ginsburg or Justice Stephen Breyer.

Not that there’s a tradition to go by. In the early years of our republic, the vice presidential oath was administered by either the president of the Senate (meaning the outgoing vice president) or the president pro-tempore of the Senate. Made a kind of sense, when one stops to think about it, since the Senate is the only body of which the vice president is a part. The trans-finagling of the vice president into the executive branch is one of the great constitutional thefts in history. But let us ride that hobby-horse another day. We’re just concerned here with gestures of unity.

It’s different with the president. The president is head of state and the president has almost always been sworn in by the Chief Justice of the United States, no matter what his political predilections. This started with President John Adams, who was sworn by Chief Justice Oliver Ellsworth (known for, among other things,* urging that the phrase “United States,” referenced in the Declaration, be taken as the name of the new republic). It has continued up through today, with a few exceptions, such as President Coolidge, who, after Harding died, was sworn by a notary, his father. But the business of the vice president picking some like-minded justice to administer the oath seems to be recent.

Vice President Gore was sworn to his first term by Byron White, one of JFK’s nominees to the Supreme Court and one of the two dissenters in Roe v. Wade (the other was Chief Justice Rehnquist) and to his second term by Justice Ginsburg. Vice President Cheney was sworn by Chief Justice Rehnquist and Speaker Hastert. Vice President Biden as sworn by two liberal justices, John Paul Stevens and Sonia Sotomayor. Now another ideologicalistic pairing will take place with Mr. Pence and Justice Thomas. Had he asked, say, Justice Kagan, she could have stood there for all liberals to acknowledge that there are some things above our political feuds.


* One of the other things is that, with Roger Sherman, Ellsworth also advanced the idea, known as the Connecticut Plan, for a bi-cameral legislature to deal with the tension between a popular vote and the states.

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