2009 Judiciary Act: Part Three

This is my third post on the law professors’ proposal for a Judiciary Act of 2009. My first post is here. My second post is here.

The professors’ third proposal is for Congress to specify that the Chief Justice be appointed to a term of seven years with the possibility of renewal. So as to ensure the position of Chief Justice is not limited to Justices currently on the Court, the term would automatically extend until the President has an opportunity to appoint a new Justice to the Court. The professors believe a term limit is desirable given the increased responsibilities of the Chief Justice.

The proposal revels something unexpected about our current procedures for choosing the Chief Justice.

The Constitution assumes the existence of a Chief Justice, in Article III, section 3 (“When the President of the United States is tried, the Chief Justice shall preside”). But the Constitution does not specify how the Chief Justice is to be selected. Indeed, aside from that one reference in Article III, section 3, the Constitution says nothing at all about the Chief Justice. The Constitution also does not refer in any place to “Associate” Justices; Section 1 of Article III and Section 2 of Article II refer instead to the “judges” of the Supreme Court.

Consider, then, the practices we follow. In order for an Associate Justice to be elevated to Chief Justice, the President nominates and the Senate confirms the Associate Justice to the position. This is the procedure that was followed when Rehnquist was elevated. The assumption in this process is that if the Senate refuses to confirm, the nominee retains the position of Associate Justice.

When the President seeks to fill the position of Chief Justice with an outside candidate, the President nominates the candidate to the position of Chief Justice. The Senate is asked to confirm the candidate to that position. (If the Senate refuses, the candidate does not join the Court.) Thus, President George W. Bush originally nominated John G. Roberts to the post of Associate Justice to replace O’Connor. When Rehnquist died, Bush withdrew that nomination and nominated Roberts instead for the position of Chief Justice, to which he was confirmed by the Senate. If I am counting right, just three Associate Justices have ever been elevated to Chief Justice: White, Stone, and Rehnquist. (Rutledge and Hughes had previously served as Associate Justices.) The preference has been for outsiders.

I assume under the professors’ proposal that after an outsider’s seven-year term is up, the Chief Justice becomes an Associate Justice. That raises a question: would the President need to nominate and the Senate need to confirm the Chief Justice, whose term is expiring, to the position of Associate Justice? The answer must be no. The initial appointment must, for constitutional purposes, be to the position of a “judge” of the Supreme Court. That position is held for life, assuming good behavior. No further appointment after the expiration of the seven-year term would therefore be needed.

Yet doesn’t this also suggest that under the Constitution an Associate Justice need not be nominated by the President and confirmed by the Senate (under Article II, section 2) in order to become Chief Justice? An Associate Justice has already been appointed to the position of “judge” of the Supreme Court–the same position, for constitutional purposes, as the Chief Justice. The Constitution therefore even appears to allow for the Justices to name one of themselves to be the Chief Justice. (Though they couldn’t name an outsider.)

Or am I missing something?

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1 Response

  1. Howard Wasserman says:

    The Constitution is silent as to the structure of the Supreme Court, including the design of the Chief position. It is left to Congress to determine how the Chiefship should be treated and who should select it and how. So, yes, Congress could design the Court so there are nine “judges” and they choose among themselves who will be Chief, for some term of years. Or it could be seniority and term of years, as with the lower courts. Ed Swaine and Todd Pettys both have written on the question of selecting the Chief.