# How does the chief justice get appointed? **URL:** \ **Category:** Factual Questions\ **Created:** [January 9, 2003, 10:39pm UTC](https://boards.straightdope.com/t/how-does-the-chief-justice-get-appointed/147614 "2003-01-09T22:39:49Z")\ **Posts on this page:** 13\ **Page:** 1
**Author:** ![jclune](https://avatars.discourse-cdn.com/v4/letter/j/9dc877/32.png) [@jclune](https://boards.straightdope.com/u/jclune)\ **Post date:** [January 9, 2003, 10:39pm UTC](https://boards.straightdope.com/t/how-does-the-chief-justice-get-appointed/147614/1 "2003-01-09T22:39:49Z")
In the supreme court, how is the Chief Justice determined? Has there ever been a situation in which a justice with more seniority is overlooked and somebody with less tenure chosen? ---
**Author:** ![astorian](https://avatars.discourse-cdn.com/v4/letter/a/ad7895/32.png) [@astorian](https://boards.straightdope.com/u/astorian)\ **Post date:** [January 9, 2003, 10:49pm UTC](https://boards.straightdope.com/t/how-does-the-chief-justice-get-appointed/147614/2 "2003-01-09T22:49:28Z")
The Chief Justice is apointed by the President, just like every other justice. Seniority has absolutely nothing to do with it. If Chief Justice William Rehnquist resigns this year (there are rampant rumors that he will), President Bush COULD give one of the current associate justices (Antonin Scalia, say) the title of Chief Justice and then appoint another judge or lawyer as an associate justice, but that’s up to him. John Paul Stevens would then be the senior justice on the Supreme Court, but that gives him NO special standing and NO special claim to the title of Chief Justice. President Bush could appoint ANYONE he likes as Chief Justice- it doesn’t have to be someone already on the Supreme Court. Of course, the Senate will have to confirm the President’s choice for Chief Justice, just as it would for any other justice. ---
**Author:** ![BobT](https://avatars.discourse-cdn.com/v4/letter/b/8e8cbc/32.png) [@BobT](https://boards.straightdope.com/u/BobT)\ **Post date:** [January 9, 2003, 10:52pm UTC](https://boards.straightdope.com/t/how-does-the-chief-justice-get-appointed/147614/3 "2003-01-09T22:52:47Z")
The senior associate does get to assign opinions if s/he is in the majority and the Chief isn’t. [dicta] Rehnquist is Chief Justice of the United States while the other eight are Associate Justices of the Supreme Court. [/dicta] ---
**Author:** ![pravnik](https://avatars.discourse-cdn.com/v4/letter/p/8edcca/32.png) [@pravnik](https://boards.straightdope.com/u/pravnik)\ **Post date:** [January 9, 2003, 10:57pm UTC](https://boards.straightdope.com/t/how-does-the-chief-justice-get-appointed/147614/4 "2003-01-09T22:57:45Z")
The Chief Justice is appointed by the President and confirmed by the Senate, just like an Associate Justice. It’s different on the lower levels; there it’s strictly a matter seniority among judges 64 and over who have served for more than one year but haven’t been chief judge before. Chief Justice John Marshall went from being Secretary of State directly to Chief Justice of the Supreme Court, bypassing quite a few. I’d have to look up more recent instances. ---
**Author:** ![starfish](https://avatars.discourse-cdn.com/v4/letter/s/87869e/32.png) [@starfish](https://boards.straightdope.com/u/starfish)\ **Post date:** [January 9, 2003, 10:59pm UTC](https://boards.straightdope.com/t/how-does-the-chief-justice-get-appointed/147614/5 "2003-01-09T22:59:07Z")
> [@](#): > > \*Originally posted by BobT \* > \*\*The senior associate does get to assign opinions if s/he is in the majority and the Chief isn’t. > \*\* When they get too old, you have to assign opinions to them. 😃 ---
**Author:** ![Mighty\_Maximino](https://avatars.discourse-cdn.com/v4/letter/m/e95f7d/32.png) [@Mighty\_Maximino](https://boards.straightdope.com/u/Mighty_Maximino)\ **Post date:** [January 9, 2003, 11:19pm UTC](https://boards.straightdope.com/t/how-does-the-chief-justice-get-appointed/147614/6 "2003-01-09T23:19:06Z")
> [@](#): > > \*Originally posted by pravnik \* > \*\*Chief Justice John Marshall went from being Secretary of State directly to Chief Justice of the Supreme Court, bypassing quite a few. I’d have to look up more recent instances. \*\* I believe that Earl Warren is sort of the poster boy for this phenomenon. He went right from Governor of California to CJ, IIRC. ---
**Author:** ![Freddy\_the\_Pig](https://avatars.discourse-cdn.com/v4/letter/f/a587f6/32.png) [@Freddy\_the\_Pig](https://boards.straightdope.com/u/Freddy_the_Pig)\ **Post date:** [January 10, 2003, 2:33am UTC](https://boards.straightdope.com/t/how-does-the-chief-justice-get-appointed/147614/7 "2003-01-10T02:33:10Z")
It’s actually more common for the President to appoint a Chief Justice from outside the Court, as opposed to “promoting” an associate justice. However, it has been speculated that Bush will promote one of the associates when Rehnquist retires; if so, this will make two “promotions” in a row and perhaps signal a change in this historic trend. ---
**Author:** ![jclune](https://avatars.discourse-cdn.com/v4/letter/j/9dc877/32.png) [@jclune](https://boards.straightdope.com/u/jclune)\ **Post date:** [January 10, 2003, 3:41am UTC](https://boards.straightdope.com/t/how-does-the-chief-justice-get-appointed/147614/8 "2003-01-10T03:41:21Z")
If Bush decides to promote an sitting judge as well as appoint a new justice, will there then be TWO confirmation hearings? One to confirm that one judge is being promoted to Chief and the other to confirm the judge? ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [January 10, 2003, 4:23am UTC](https://boards.straightdope.com/t/how-does-the-chief-justice-get-appointed/147614/9 "2003-01-10T04:23:25Z")
Only a very few of the Chief Justices served on the court before becoming the Chief: John Jay (1789-1795) – no previous service (obviously) John Rutledge (July-Dec. 1795) – not on the court when named; had been Associate Justice 1789-1791 Oliver Ellsworth (1796-1800) – no previous service John Marshall (1801-1835) – no previous service Roger B. Taney (1835-1864) – no previous service Salmon P. Chase (1864-1873) – no previous service Morrison R. Waite (1874-1888) – no previous service Melville W. Fuller (1888-1910) – no previous service Edward D. White (1910-1921) – Associate Justice since 1894 William H. Taft (1921-1930) – no previous service Charles E. Hughes (1930-1941) – – not on the court when named; had been Associate Justice 1910-1916 Harlan F. Stone – Associate Justice since 1925; the only man to have occupied all nine seats on the court Fred M. Vinson – no previous service Earl Warren – no previous service Warren E. Burger – no previous service William H. Rehnquist – Associate Justice since 1971 Of 16 Chief Justices, only three were Associate Justices “promoted” to Chief, and two others had previously served as Associate Justices but were off the court at the time of their appointment. Eleven had not served on the Supreme Court before becoming its head. **jclune** , yep. Rehnquist was grilled by the Senate before his promotion, even though he was already on the court, and his replacement, Justice Scalia, was also the subject of hearings. ---
**Author:** ![Freddy\_the\_Pig](https://avatars.discourse-cdn.com/v4/letter/f/a587f6/32.png) [@Freddy\_the\_Pig](https://boards.straightdope.com/u/Freddy_the_Pig)\ **Post date:** [January 10, 2003, 5:28am UTC](https://boards.straightdope.com/t/how-does-the-chief-justice-get-appointed/147614/10 "2003-01-10T05:28:00Z")
And the grilling can get nasty. In 1968, when Earl Warren announced his retirement, Lyndon Johnson nominated Associate Justice Abe Fortas for promotion to Chief Justice. The confirmation hearings revealed ethical problems in Fortas’ finances, forcing him to not only withdraw from consideration as Chief Justice but eventually to resign his associate justiceship as well. The poor sap nominated to replace Fortas, Homer Thornberry, saw his nomination go up in smoke through no fault of his own when Fortas withdrew. As a result, it fell to Richard Nixon to name Warren Burger to succeed Earl Warren. Come to think of it, if Fortas had been confirmed, we would now be shooting for _three_ straight promotions, so perhaps the tide is turning. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [January 10, 2003, 4:55pm UTC](https://boards.straightdope.com/t/how-does-the-chief-justice-get-appointed/147614/11 "2003-01-10T16:55:42Z")
> [@](#): > > \*Originally posted by jclune \* > \*\*If Bush decides to promote an sitting judge as well as appoint a new justice, will there then be TWO confirmation hearings? One to confirm that one judge is being promoted to Chief and the other to confirm the judge? \*\* Yes, because the Chief Justice is a separate office, not just a seniority-by-protocol thing. See [United States Code, TITLE 28 \> PART I \> CHAPTER 1 - SUPREME COURT](http://www4.law.cornell.edu/uscode/28/1.html) > [@](#): > > Sec. 1. - Number of justices; quorum > > The Supreme Court of the United States shall consist of a Chief Justice of the United States and eight associate justices, any six of whom shall constitute a quorum. As an example of the separate duties of the Chief Justice, he/she is chair of the [Judicial Conference of the United States](http://www4.law.cornell.edu/uscode/28/331.html). Since it’s a separate office, the nominee must be confirmed by the Senate. If the President nominated a sitting judge but the Senate declined to confirm, the declined nominee would continue to be an associate judge of the Court. (As **jklann** notes, Justice Fortas resigned as an associate judge because of the fall-out from the information about his finances. He could have chosen to remain on the Court, but I suppose if the financial stuff was serious enough, there might have been rumblings of impeachment.) ---
**Author:** ![smiling\_bandit](https://avatars.discourse-cdn.com/v4/letter/s/e9a140/32.png) [@smiling\_bandit](https://boards.straightdope.com/u/smiling_bandit)\ **Post date:** [January 10, 2003, 5:03pm UTC](https://boards.straightdope.com/t/how-does-the-chief-justice-get-appointed/147614/12 "2003-01-10T17:03:46Z")
> [@](#): > > jclune, yep. Rehnquist was grilled by the Senate before his promotion, even though he was already on the court, and his replacement, Justice Scalia, was also the subject of hearings. That can’t be right - wasn’t he just appointed straight to Chief Justice? Or did the opposittion just take the opportunity to try and stop his appointment twice? ---
**Author:** ![pravnik](https://avatars.discourse-cdn.com/v4/letter/p/8edcca/32.png) [@pravnik](https://boards.straightdope.com/u/pravnik)\ **Post date:** [January 10, 2003, 5:12pm UTC](https://boards.straightdope.com/t/how-does-the-chief-justice-get-appointed/147614/13 "2003-01-10T17:12:06Z")
Rehnquist had been an Associate Justice since 1971, and was elevated to Chief Justice after Burger retired. The opposition could try to stop him from being appointed to Chief Justice, but the Associate Justice position would have still been his even if they had. Once you’re a “made man”, you’re on the bench for life (barring impeachment).