I put this in GQ because I’m looking for answers regarding Supreme Court and presidential tradition and protocol, not personal opinions.
Today the president nominated John Roberts to replace the late William Renquist as Chief Justice of the United States. Is that a slap in the face, so to speak, to the other seven/eight justices who have been serving so long. I realize that the Supreme Court is not a union shop, with seniority rules, but doesn’t one of them “deserve” the spot before Johnny-come-lately Roberts?
Extra question: Can a new president make a different Supreme Court justice the Chief Justice when he comes into office?
In answer to your second question: No. Chief Justice is its own position. If Judge Roberts were to be confirmed he will be Chief Justice for life.
As for the first question, senority is important on the court; however, it is not the determining factor. Only three sitting justices have ever been named to the big chair. Ideology is far more important. Five of the justices simply don’t have a chance due to their opinions in various cases. The other two, Scalia and Thomas met the ideological test, but would also face rather stiff opposition in the Senate.
More than that, if the president named a sitting justice to be Chief Justice, the president would have to worry about a third confirmation hearing. One to replace Justice O’Connor, one to replace Chief Justice Rehnquist and a third to replace the sitting justice who became Chief Justice.
I was going to ask, but you imply in your answer: does the Chief Justice need to be confirmed even if s/he is a sitting Associate Justice? Since the answer appears to be “yes”, was Rehnquist’s nomination from Associate to Chief just a formality, or was it contentious? Has an Associate Justice ever been nominated yet not confirmed as Chief? If that happened, would they still remain as an Associate?
I’ve also been wondering, how often do nominees not get approved? Is it just a formality, or do presidents often attempt to appoint people who get slammed down?
Both of Rehnquist’s nomination hearings had a fair bit of opposition from liberal Democratic senators. Rehnquist was rumored to have discouraged minority voters in Arizona before he joined the bench and he was also asked a lot about his opposition to the Voting Rights Act.
These are things you can learn when you watch highlights of old confirmation hearings on CSPAN!
Earl Warren had never been a judge before he was named Chief Justice. And he was able to get the entire court to agree with him in Brown v. Board of Education fairly quickly.
It’s more than a formality. In the 19th Century it happened often enough. In the 20th, most nominees got in easily, until things started getting nasty when Johnson tried to nominate Abe Fortas as CJ. Didn’t fly. Later, the opposition to Robert Bork took things to a new level.
Note that often the president will withdraw a difficult nomination before it comes to a vote.
To just answer these two, Chief Justice and Associate Justice are two entirely separate positions. An Associate Justice would have to be confirmed as Chief Juctice exactly the same as any other nominee to the position. Not being confirmed as Chief Justice would have no impact whatsoever on his or her position as Associate Justice.
It can often be an advantage to nominate someone to either position who has little or no judicial track record, and thus has not made specific decisions that opponents can cite.
Also this has been a split court with Scalia and Thomas on one side. Someone new will have a better chance of keeping harmony in the new court. With a new CJ it will truly be a new court, not just the old one patched up.
Also, I suspect that Roberts will have an easier time being confirmed as Rehnquist’s replacement than he would as O’Connor’s replacement.
Since Rehnquist was one of the most conservative justices, Democratic Senators MAY reason that “Roberts for Rehnquist doesn’t change the balance of the Court at all. We’d just be replacing one conservative with another.”
But since Sandra Day O’Connor was seen as a crucial swing vote, and since she sometimes (not usually) sided with the liberal wing of the Court, Senate Democrats might be more reluctant to let Roberts replace her.
While the Supreme Court itself is in theory supposed to be above politics, the process of nomination and confirmation of judges to sit on the court is of course a highly political one. Every judge currently on the court has been through this process, and understands (or should understand) that it was politics that gave them their position in the first place. Therefore they would have no call to feel that it was a “slap in the face” for a president to appoint a CJ on the basis of political expediency rather than choose from among the AJs, especially when there is no real tradition of a president appointing a CJ from among the AJs.
No, I don’t think any of the associate justices would take it as a slap in the face. For that matter, being known as a President’s third choice (as both Blackmun and Kennedy were) is no big deal - being on the Supreme Court is the pinnacle of the profession, and most lawyers and/or judges would accept an appointment on virtually any terms.
I remember reading an article in law school that suggested it’s generally not a good idea to “promote” an associate justice to chief justice. If they’ve been there for awhile (as all of them, as of 2005, have been), the battle lines are pretty well drawn, the likes and dislikes, preferences and alliances pretty well established. A new chief justice comes to the job fresh and can forge his own alliances and woo others to his point of view (as Warren did for Brown v. Board of Education, noted above), unencumbered by a past track record with this or that justice.
I’m not a big fan of Roberts because of his conservatism, but what else did we expect from this White House? Ideology aside, though, he is by all accounts a bright, personable, self-effacing guy, and those are very important qualities in a chief justice.