# 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:** 11\ **Page:** 2
**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 23, 2020, 1:47pm 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/916037/21 "2020-07-23T13:47:16Z")
> [@Do\_Not\_Taunt](#): > > 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. I remit to the following language in the OP, highlighting mine: > [@ready29003](#): > > 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? That does seem to question if he can just put him on the CJ job on his say-so. The answer to that is, as we have discussed, that every precedent says the move from AJ to CJ indeed would have to be confirmed by the Senate and would not take effect until it was. That it may or may not be past the likes of the Barrsket of Deplorables to claim that if the text of the Constitution does not explicitly forbid it then the President’s word is what goes, seems to be a leitmotif of **ready29003** ’s threads. But here’s the thing, with various of their hypotheticals, ISTM if the system let them stand, then that would mean _the coup has been already under way and at least partly succeeded_, or, more likely, that the system is “coming out” and openly admitting it never was what it publicly claimed to be. ---
**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 23, 2020, 1:51pm 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/916037/22 "2020-07-23T13:51:16Z")
> [@Smapti](#): > > You are assigning the oath and the office of Chief Justice magical and talismanic powers that the Constitution does not. We know that with Roberts it did not include the power to remember the oath from memory… OTOH I’d be pretty sure that the MAGAts would indeed nitpick even how the new President held the Bible to denounce that he’s illegitimate and only DJT is the real President. ---
**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 23, 2020, 2:19pm 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/916037/23 "2020-07-23T14:19:23Z")
> [@dtilque](#): > > 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. But the main opinion is what sets precedent. Concurring opinions can be cited in the future, but don’t have the same force. ---
**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 23, 2020, 5:04pm 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/916037/24 "2020-07-23T17:04:07Z")
> [@JRDelirious](#): > > That does seem to question if he can just put him on the CJ job on his say-so. Yes, from AJ to CJ, which would barely be useful even if legal. Not from any other job to CJ, or any other job to AJ. Are we even disagreeing here? ---
**Author:** ![Colibri](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/colibri/32/1841_2.png) [@Colibri](https://boards.straightdope.com/u/Colibri)\ **Post date:** [July 23, 2020, 5:11pm 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/916037/25 "2020-07-23T17:11:49Z")
> [@JRDelirious](#): > > That it may or may not be past the likes of the Barrsket of Deplorables to claim that if the text of the Constitution does not explicitly forbid it then the President’s word is what goes, seems to be a leitmotif of **ready29003** ’s threads. But here’s the thing, with various of their hypotheticals, ISTM if the system let them stand, then that would mean _the coup has been already under way and at least partly succeeded_, or, more likely, that the system is “coming out” and openly admitting it never was what it publicly claimed to be. **Moderator Note** Let’s keep the political commentary out of General Questions. Colibri General Questions Moderator ---
**Author:** ![dtilque](https://avatars.discourse-cdn.com/v4/letter/d/d6d6ee/32.png) [@dtilque](https://boards.straightdope.com/u/dtilque)\ **Post date:** [July 23, 2020, 10:46pm 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/916037/26 "2020-07-23T22:46:54Z")
> [@RealityChuck](#): > > > [@dtilque](#): > > > > 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. > > But the main opinion is what sets precedent. Concurring opinions can be cited in the future, but don’t have the same force. What happens if the decision is 6-3, the CJ writes the main opinion, and the other 5 in the majority combine in a concurring opinion? Other than the CJ looking like a fool, that is. ---
**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 24, 2020, 1:41am 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/916037/27 "2020-07-24T01:41:57Z")
> [@Smapti](#): > > 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”. Are you sure? Did LBJ become president the moment Kennedy was declared dead or the moment he was sworn in? Put it another way, could LBJ have issued orders to the military in the time between Kennedy dying and him being sworn in? It seems to me the urgency they had in swearing him in says something. If he was insta-president at the moment of Kennedy’s death then they could have waited to do the swearing in as a formality at a later date with lots of pomp and circumstance so beloved by the beltway crowd. ---
**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 24, 2020, 1:58am 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/916037/28 "2020-07-24T01:58:19Z")
> [@Whack-a-Mole](#): > > Did LBJ become president the moment Kennedy was declared dead or the moment he was sworn in? > > Put it another way, could LBJ have issued orders to the military in the time between Kennedy dying and him being sworn in? The relevant text of the Constitution at the time, which has since been superseded by the 25th Amendment, states that “In case of the removal of the President from office, or of his death, resignation, or inability to discharge the powers and duties of the said office, the same shall devolve on the Vice President”. I’m no big-city lawyer, but my reading is that LBJ became president the moment JFK died, but that taking the oath enabled him to actually exercise the presidential authority. ---
**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 24, 2020, 2:07pm 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/916037/29 "2020-07-24T14:07:42Z")
> [@Do\_Not\_Taunt](#): > > Yes, from AJ to CJ, which would barely be useful even if legal. Not from any other job to CJ, or any other job to AJ. Are we even disagreeing here? Not at all. ---
**Author:** ![md-2000](https://avatars.discourse-cdn.com/v4/letter/m/9d8465/32.png) [@md-2000](https://boards.straightdope.com/u/md-2000)\ **Post date:** [July 24, 2020, 3:29pm 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/916037/30 "2020-07-24T15:29:03Z")
As i understand - if the decision is a plurality, if the court decides a certain way say, 6-3 but 2 of the 6 write a separate opinion pushing a different chain of logic- then the result is not as binding. If 4 justices agree “tattoos are free speech” (to pick an example out of thin air) and 2 say “not free speech, but if the tattoo cannot be seen, it cannot be held against the person” then there is no SCOTUS ruling that tattoos are free speech. Other cases can quote the decision as guidance but it’s not binding precedent. (Any lawyers here?) Remember that FDR threatened to expand the court if it continued to block the new deal. The court backed down. There are plenty of levers for a president to push if he also has a compliant house and senate. When the house or senate won’t go along - well, that’s the 3-way balance of power. Also, Roberts has already established that in an impeachment, the trial judge (CJ) is a very passive observer, not an active participant. Whether you agree or disagree, that’s precedent now for what it’s worth. Presumably a different CJ at another impeachment could decide Roberts was wrong and change the rule. ---
**Author:** ![Falchion](https://avatars.discourse-cdn.com/v4/letter/f/a88e57/32.png) [@Falchion](https://boards.straightdope.com/u/Falchion)\ **Post date:** [July 24, 2020, 3:44pm 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/916037/31 "2020-07-24T15:44:37Z")
> [@md-2000](#): > > As i understand - if the decision is a plurality, if the court decides a certain way say, 6-3 but 2 of the 6 write a separate opinion pushing a different chain of logic- then the result is not as binding. If 4 justices agree “tattoos are free speech” (to pick an example out of thin air) and 2 say “not free speech, but if the tattoo cannot be seen, it cannot be held against the person” then there is no SCOTUS ruling that tattoos are free speech. Other cases can quote the decision as guidance but it’s not binding precedent. (Any lawyers here?) The rule is that “When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, ‘the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds. . . .’” Marks v. United States (1977). I’m not sure anyone actually knows what that means in practice. There’s a decent Congressional Research Service discussion of the issue [here](https://fas.org/sgp/crs/misc/LSB10113.pdf). ETA: > [@md-2000](#): > > Also, Roberts has already established that in an impeachment, the trial judge (CJ) is a very passive observer, not an active participant. Whether you agree or disagree, that’s precedent now for what it’s worth. Presumably a different CJ at another impeachment could decide Roberts was wrong and change the rule. Roberts was (very deliberately) following the precedent set by Rehnquist (“I did nothing in particular and I did it very well”). I’m not sure what role Chase played. [Previous 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=1)