# If the Chief Justice of the Supreme court "disappears" can the president immediately nominate another sitting Justice to that position without Senate approval? **URL:** \ **Category:** Factual Questions\ **Created:** [July 22, 2020, 5:51pm UTC](https://boards.straightdope.com/t/if-the-chief-justice-of-the-supreme-court-disappears-can-the-president-immediately-nominate-another-sitting-justice-to-that-position-without-senate-approval/916037 "2020-07-22T17:51:16Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![ready29003](https://avatars.discourse-cdn.com/v4/letter/r/71e660/32.png) [@ready29003](https://boards.straightdope.com/u/ready29003)\ **Post date:** [July 22, 2020, 5:51pm UTC](https://boards.straightdope.com/t/if-the-chief-justice-of-the-supreme-court-disappears-can-the-president-immediately-nominate-another-sitting-justice-to-that-position-without-senate-approval/916037/1 "2020-07-22T17:51:16Z")
Just a legal/ constitutional question here. If the Chief Justice of the SCOTUS disappears due to death or arrest, can the President simply appoint let’s say…Kavanaugh to be the new chief Justice and would that take effect immediately? Or is there some requirement that the Senate approve the move from Justice to Chief Justice? Thanks! Matt ---
**Author:** ![Dr.Winston\_OBoogie](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/dr.winston_oboogie/32/2945_2.png) [@Dr.Winston\_OBoogie](https://boards.straightdope.com/u/Dr.Winston_OBoogie)\ **Post date:** [July 22, 2020, 6:02pm UTC](https://boards.straightdope.com/t/if-the-chief-justice-of-the-supreme-court-disappears-can-the-president-immediately-nominate-another-sitting-justice-to-that-position-without-senate-approval/916037/2 "2020-07-22T18:02:34Z")
[Per Wikipedia,](https://en.wikipedia.org/wiki/Chief_Justice_of_the_United_States) > [@](#): > > The practice of appointing an individual to serve as chief justice is grounded in tradition; while the Constitution mandates that there be a chief justice, it is silent on the subject of how one is chosen and by whom. There is no specific constitutional prohibition against using another method to select the chief justice from among those justices properly appointed and confirmed to the Supreme Court. > > Three [incumbent](https://en.wikipedia.org/wiki/Incumbent) associate justices have been nominated by the president and confirmed by the Senate as chief justice: Edward Douglass White in 1910, Harlan Fiske Stone in 1941, and William Rehnquist in 1986. A fourth, [Abe Fortas](https://en.wikipedia.org/wiki/Abe_Fortas), was nominated to the position in 1968, but was not confirmed. So, basically, the Chief Justice has traditionally been approved by the Senate, however if no one has been nominated for the position, there’s nothing keeping the EXISTING justices from naming their own, and I suppose the only thing keeping the President from “declaring” a Chief Justice is that the other justices wouldn’t accept it. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [July 22, 2020, 6:10pm UTC](https://boards.straightdope.com/t/if-the-chief-justice-of-the-supreme-court-disappears-can-the-president-immediately-nominate-another-sitting-justice-to-that-position-without-senate-approval/916037/3 "2020-07-22T18:10:38Z")
Maybe… It appears that there is only a long standing tradition of treating the position of Chief Justice as separate from the position of Associate Justice (which means an Associate Justice moving to the position of Chief Justice is assuming a new position and has to follow the nomination/confirmation process). The Constitution doesn’t explicitly say this. It just says the court shall have Judges that must be nominated by the President and confirmed by the Senate. Congress enacted the Judiciary Act of 1789, which added some details. It said that there would be six judges on the Supreme Court. President Washington submitted a list of six names to the Senate and specifically identified John Jay as the nominee for the position of Chief Justice. But it seems to me that other procedures would be constitutional. Congress could pass a law saying that the senior judge is the Chief Justice, for example, or giving the justices themselves the power to elect their own Chief. ---
**Author:** ![Omar\_Little](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/omar_little/32/269_2.png) [@Omar\_Little](https://boards.straightdope.com/u/Omar_Little)\ **Post date:** [July 22, 2020, 6:26pm UTC](https://boards.straightdope.com/t/if-the-chief-justice-of-the-supreme-court-disappears-can-the-president-immediately-nominate-another-sitting-justice-to-that-position-without-senate-approval/916037/4 "2020-07-22T18:26:05Z")
Does it make a difference? The Chief Justice powers beyond that of as a member of SCOTUS, is to preside over the court in public session. More of an administrative function. It’s not like they get an extra vote, or decide which cases they will hear. ---
**Author:** ![RealityChuck](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/realitychuck/32/195_2.png) [@RealityChuck](https://boards.straightdope.com/u/RealityChuck)\ **Post date:** [July 22, 2020, 6:45pm UTC](https://boards.straightdope.com/t/if-the-chief-justice-of-the-supreme-court-disappears-can-the-president-immediately-nominate-another-sitting-justice-to-that-position-without-senate-approval/916037/5 "2020-07-22T18:45:13Z")
In 1968, when Earl Warren announced his retirement, Lyndon Johnson appointed associate justice Abe Fortas to move on to be Chief Justice. The nomination had to go through the Senate, and they blocked it. So precedent, at least, shows that it has to go through the Senate. And knowing Johnson, if it were possible to just make him Chief Justice without approval, he would have found it. ---
**Author:** ![dtilque](https://avatars.discourse-cdn.com/v4/letter/d/d6d6ee/32.png) [@dtilque](https://boards.straightdope.com/u/dtilque)\ **Post date:** [July 22, 2020, 6:53pm UTC](https://boards.straightdope.com/t/if-the-chief-justice-of-the-supreme-court-disappears-can-the-president-immediately-nominate-another-sitting-justice-to-that-position-without-senate-approval/916037/6 "2020-07-22T18:53:27Z")
John Roberts was first nominated for Associate Justice, but while that was pending, the office of Chief Justice came open. BushJr then withdrew the nomination and resubmitted Roberts for Chief Justice. So they were definitely treating the office as separate position there. > [@ready29003](#): > > If the Chief Justice of the SCOTUS disappears due to death or arrest, Arresting a Justice of the Supreme Court does not open that position. They’d have to be impeached first. AFAIK, death, resignation, and impeachment are the only ways SCOTUS positions become open. ---
**Author:** ![Pleonast](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/pleonast/32/1183_2.png) [@Pleonast](https://boards.straightdope.com/u/Pleonast)\ **Post date:** [July 22, 2020, 6:56pm UTC](https://boards.straightdope.com/t/if-the-chief-justice-of-the-supreme-court-disappears-can-the-president-immediately-nominate-another-sitting-justice-to-that-position-without-senate-approval/916037/7 "2020-07-22T18:56:03Z")
> [@dtilque](#): > > Arresting a Justice of the Supreme Court does not open that position. They’d have to be impeached first. AFAIK, death, resignation, and impeachment are the only ways SCOTUS positions become open. That is correct for existing positions on the Supreme Court. However, an act of Congress can create a new position, which would be open. ---
**Author:** ![JRDelirious](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/jrdelirious/32/9531_2.png) [@JRDelirious](https://boards.straightdope.com/u/JRDelirious)\ **Post date:** [July 22, 2020, 6:59pm UTC](https://boards.straightdope.com/t/if-the-chief-justice-of-the-supreme-court-disappears-can-the-president-immediately-nominate-another-sitting-justice-to-that-position-without-senate-approval/916037/8 "2020-07-22T18:59:01Z")
_ **By law** _ in case of death, incapacitation resignation before replacement, or removal, the senior AJ becomes Acting CJ until the vacancy is filled by the regular process. Right now that’s the Hon. Justice Thomas. ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [July 22, 2020, 6:59pm UTC](https://boards.straightdope.com/t/if-the-chief-justice-of-the-supreme-court-disappears-can-the-president-immediately-nominate-another-sitting-justice-to-that-position-without-senate-approval/916037/9 "2020-07-22T18:59:34Z")
I’m pretty sure the Chief Justice also gets to say who will write a majority opinion. ---
**Author:** ![RealityChuck](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/realitychuck/32/195_2.png) [@RealityChuck](https://boards.straightdope.com/u/RealityChuck)\ **Post date:** [July 22, 2020, 7:06pm UTC](https://boards.straightdope.com/t/if-the-chief-justice-of-the-supreme-court-disappears-can-the-president-immediately-nominate-another-sitting-justice-to-that-position-without-senate-approval/916037/10 "2020-07-22T19:06:58Z")
> [@Whack-a-Mole](#): > > I’m pretty sure the Chief Justice also gets to say who will write a majority opinion. Only if he’s in the majority. ---
**Author:** ![Smapti](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/smapti/32/17938_2.png) [@Smapti](https://boards.straightdope.com/u/Smapti)\ **Post date:** [July 22, 2020, 10:10pm UTC](https://boards.straightdope.com/t/if-the-chief-justice-of-the-supreme-court-disappears-can-the-president-immediately-nominate-another-sitting-justice-to-that-position-without-senate-approval/916037/11 "2020-07-22T22:10:05Z")
OP: No, Trump is not going to have John Roberts killed so he can become a dictator, and these hypotheticals of yours are becoming increasingly outlandish by the day. ---
**Author:** ![Max\_S](https://avatars.discourse-cdn.com/v4/letter/m/46a35a/32.png) [@Max\_S](https://boards.straightdope.com/u/Max_S)\ **Post date:** [July 22, 2020, 10:25pm UTC](https://boards.straightdope.com/t/if-the-chief-justice-of-the-supreme-court-disappears-can-the-president-immediately-nominate-another-sitting-justice-to-that-position-without-senate-approval/916037/12 "2020-07-22T22:25:30Z")
**28 U.S. Code § 3. Vacancy in office of Chief Justice; disability** > Whenever the Chief Justice is unable to perform the duties of his office or the office is vacant, his powers and duties shall devolve upon the associate justice next in precedence who is able to act, until such disability is removed or another Chief Justice is appointed and duly qualified. **28 U.S. Code § 4. Precedence of associate justices** > Associate justices shall have precedence according to the seniority of their commissions. Justices whose commissions bear the same date shall have precedence according to seniority in age. ETA: The law does not answer the specific question raised by the original post, which is whether a new Chief Justice can be appointed without confirmation by the Senate. But I believe **Dr.Winston\_OBoogie** answered that in post #2. ~Max ---
**Author:** ![Do\_Not\_Taunt](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/do_not_taunt/32/2968_2.png) [@Do\_Not\_Taunt](https://boards.straightdope.com/u/Do_Not_Taunt)\ **Post date:** [July 22, 2020, 10:29pm UTC](https://boards.straightdope.com/t/if-the-chief-justice-of-the-supreme-court-disappears-can-the-president-immediately-nominate-another-sitting-justice-to-that-position-without-senate-approval/916037/13 "2020-07-22T22:29:45Z")
> [@Smapti](#): > > OP: No, Trump is not going to have John Roberts killed so he can become a dictator, and these hypotheticals of yours are becoming increasingly outlandish by the day. Where on earth did that come from? He’s not asking if the President can immediately appoint a new justice, or do a recess appointment, or anything like that (he can’t.) He’s only asking if he can elevate someone who is already an Associate Justice on the SCOTUS to Chief Justice, should that office come empty. A promotion that results in very little additional power. ---
**Author:** ![Smapti](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/smapti/32/17938_2.png) [@Smapti](https://boards.straightdope.com/u/Smapti)\ **Post date:** [July 22, 2020, 10:32pm UTC](https://boards.straightdope.com/t/if-the-chief-justice-of-the-supreme-court-disappears-can-the-president-immediately-nominate-another-sitting-justice-to-that-position-without-senate-approval/916037/14 "2020-07-22T22:32:51Z")
I refer you to [his previous OP about the Chief Justice](https://boards.straightdope.com/t/what-happens-if-trump-and-chief-justice-roberts-do-this-to-steal-the-election/915942/12). ---
**Author:** ![Do\_Not\_Taunt](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/do_not_taunt/32/2968_2.png) [@Do\_Not\_Taunt](https://boards.straightdope.com/u/Do_Not_Taunt)\ **Post date:** [July 22, 2020, 10:40pm UTC](https://boards.straightdope.com/t/if-the-chief-justice-of-the-supreme-court-disappears-can-the-president-immediately-nominate-another-sitting-justice-to-that-position-without-senate-approval/916037/15 "2020-07-22T22:40:37Z")
Thanks, I’m now dumber for having read that thread, but I still think you’re misreading/misunderstanding the OP of this one. ETA: on reflection, maybe the OP really believes that the Chief Justice has some magical powers beyond those of Associate Justices (beyond assigning the writers of opinions in certain circumstances.) ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [July 22, 2020, 10:59pm UTC](https://boards.straightdope.com/t/if-the-chief-justice-of-the-supreme-court-disappears-can-the-president-immediately-nominate-another-sitting-justice-to-that-position-without-senate-approval/916037/16 "2020-07-22T22:59:49Z")
> [@RealityChuck](#): > > > [@Whack-a-Mole](#): > > > > I’m pretty sure the Chief Justice also gets to say who will write a majority opinion. > > Only if he’s in the majority. Warren Burger supposedly used this power to steer court decisions. If he saw that the court’s “liberal” justices were going to have a majority, he would join them and then use his authority to assign the writing of the decision to himself, which he would then write as narrowly as he could. ---
**Author:** ![dtilque](https://avatars.discourse-cdn.com/v4/letter/d/d6d6ee/32.png) [@dtilque](https://boards.straightdope.com/u/dtilque)\ **Post date:** [July 22, 2020, 11:09pm UTC](https://boards.straightdope.com/t/if-the-chief-justice-of-the-supreme-court-disappears-can-the-president-immediately-nominate-another-sitting-justice-to-that-position-without-senate-approval/916037/17 "2020-07-22T23:09:31Z")
That power doesn’t prevent the other justices in the majority from writing their own decisions. As I understand it, any of the justices can write their own opinion on any case or join in with someone else’s opinion, provided that other justice voted the same way they did. ---
**Author:** ![ready29003](https://avatars.discourse-cdn.com/v4/letter/r/71e660/32.png) [@ready29003](https://boards.straightdope.com/u/ready29003)\ **Post date:** [July 23, 2020, 2:24am UTC](https://boards.straightdope.com/t/if-the-chief-justice-of-the-supreme-court-disappears-can-the-president-immediately-nominate-another-sitting-justice-to-that-position-without-senate-approval/916037/18 "2020-07-23T02:24:29Z")
The Chief Justice swears in the next President on 1/20/2021 at noon. By tradition. ---
**Author:** ![Smapti](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/smapti/32/17938_2.png) [@Smapti](https://boards.straightdope.com/u/Smapti)\ **Post date:** [July 23, 2020, 3:01am UTC](https://boards.straightdope.com/t/if-the-chief-justice-of-the-supreme-court-disappears-can-the-president-immediately-nominate-another-sitting-justice-to-that-position-without-senate-approval/916037/19 "2020-07-23T03:01:27Z")
> [@ready29003](#): > > The Chief Justice swears in the next President on 1/20/2021 at noon. By tradition. The act of being sworn in does not make someone the president. The Electoral College does that. The Constitution only states that taking the oath permits the president to “enter on the execution of his office”. Furthermore, there is no requirement that the Chief Justice administer the oath. Anyone can do it as far as the Constitution is concerned. LBJ was sworn in by a federal district court judge. Calvin Coolidge was sworn in by his dad. You are assigning the oath and the office of Chief Justice magical and talismanic powers that the Constitution does not. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [July 23, 2020, 4:50am UTC](https://boards.straightdope.com/t/if-the-chief-justice-of-the-supreme-court-disappears-can-the-president-immediately-nominate-another-sitting-justice-to-that-position-without-senate-approval/916037/20 "2020-07-23T04:50:31Z")
One real power that the Chief Justice has is to preside over presidential impeachments. Trump might worry that he could be impeached again if he’s re-elected and would want a friendly face to be making decisions about what’s allowed at the hearing. [Next page](https://boards.straightdope.com/t/if-the-chief-justice-of-the-supreme-court-disappears-can-the-president-immediately-nominate-another-sitting-justice-to-that-position-without-senate-approval/916037.md?page=2)