Congress could always impeach the rogue justices who usurped the common interpretation of the first two Branches on the appointments clause.
Laws are interpreted by anybody who applies them. If the President makes nominations to the offices of Chief Justice or Associate Justice (rather than a membership on the Court without distinction), and the Senate confirms such a nomination, then the President and the Senate have applied and interpreted the relevant constitutional provisions. Granted, their interpretations are not authoritative, but that does not mean they are no interpretations at all. And I do not see the opposing interpretation as ever having been seriously brought forward in American constitutional practice.
Given the way the Constitution is written it makes perfect sense.
If you think about, the ONLY judge specifically called for in the Constitution is the chief justice of the Supreme Court. The Constitution doesn’t say how many justices will sit on the Supreme Court, and doesn’t even specify that there will be district courts, courts of appeals, or anything else.
All those other appointments are lumped together in Article II, Section 2
Accordingly, the President would need to designate which appointee would be the chief justice, because there must be a chief justice. Similarly, you need to designate who’s an associate justice because there can only be one chief justice.
I don’t know if RTFirefly found it helpful, but I certainly did. Thanks.
Reading Article III, there are judges on the Supreme Court nominated by the President and confirmed by 2/3 of the Senate (II, 2) and by Article II, Section 3 one of these is the Chief Justice. That’s all the Constitution says about it. Not how many members there are or who becomes a Chief Justice. Hell, the Constitution doesn’t even say they can be impeached but Congress has interpreted the clause allowing impeachment of executive officers to judicial officers (but specifically not legislative officers) because otherwise how could you enforce “shall hold their offices during good behaviour” although I assume it would be Constitutional if Congress came up with another way to do it (impeachment trial is the best way IMHO).
But it was pretty well understood that Congress had the power to determine how the Supreme Court would operate* and it was the Judiciary Act of 1789 that established the court system but it did not say that the Chief Justice was a separate nomination, it simple states
In fact, I cannot see anything other than tradition that holds that the President nominates a candidate to the Office of CJ. I suspect that either Congress or maybe SCOTUS itself could declare tomorrow that the Chief Justice is simply the most senior member of the Court…
I agree with you on that. The Constitution only says that a Chief Justice must exist. It doesn’t say how the office must be filled. That’s been defined by Congress.
I agree Congress could. I’m not so sure the Supreme Court could.
Congress has legislative power. They can create or change a procedure just by passing a law.
But the Supreme Court isn’t supposed to enact legislation. Their power is supposed to be limited to interpreting existing legislation.
At the moment, Congress has enacted a law that says there is a Chief Justice and eight associate justices - which, as some of us have argued, establishes these are distinct positions. A Chief Justice can’t jump to being an associate justice and an associate justice can’t jump to being a Chief Justice except through the whole procedure of being nominated and confirmed.
Congress could change this law just be enacting a new law which created a new procedure. They could enact a law, for example, that said there shall be nine justices on the Supreme Court and those nine justices shall choose one of them from among their number each year to be the Chief Justice.
But for the Supreme Court to establish this same procedure it would have to overturn the existing law. Congress can repeal a law just by voting but the Supreme Court has to rule that the law is unconstitutional. I don’t see what argument the Court could use to claim that the current procedure is wrong.
This is an interesting comment and interesting thread. I just wanted to say that it seems to me that judicial review is at least implicit in the supremacy clause, which states more or less that the consistution and laws and treaties passed pursuant thereto are the supreme law of the land. Now I guess you could argue that “pursuant thereto” was purely procedural, that is the law passed both houses of congress and was signed by the president or his veto was overridded or he sat on it for ten days (and congress had not adjourned), but it seems obvious to me that the law also had to be within the powers enumerated in the consistution. Otherwise the constitution isn’t worth the paper it is written on.
I think you need to read a little closer. It only takes a majority to confirm any nomination. (Setting aside any procedural vote to end debate, of course.)
EXCEPT: I can’t find the law that established the procedure for choosing a Chief Justice for that position - only that justices must be nominated and confirmed. Is there a law that states when CJotUS is vacant the replacement MUST be nominated specifically for that position?
Not a law, but more out of convention, as George Washington specifically nominated John Jay as the CJ, every President afterwards just followed his example, per Todd Pettys from wevets post:
[QUOTE=Todd Pettys]
On September 24, 1789—the same day he signed the Judiciary Act of 1789 into law8— Washington sent the Senate his nominations, tapping John Jay for the position of Chief Justice and five others for the remaining seats.9 Two days later, the Senate confirmed all of the President’s selections and Jay assumed responsibility for leading the fledgling Court.10 For more than two centuries, the country has employed the same selection methodology each time the position of Chief Justice has become vacant. Sometimes the President has elected to elevate an Associate Justice (thus sending the nominee to the Senate for a second round of confirmation hearings)11 and sometimes he has nominated an individual with no prior service on the Court.
[/QUOTE]
I think a bare reading of the statute would suggest that the posts of CJUS and Associate Justice are separate appointments and positions and therefore would be necessarily need the consent of the US Senate. Now if the Law said that “there shall be 9 judges” and one from amongst them shall be the CJ, then perhaps it would be simply an administrative matter.
IIRC US Court of Appeals Chief Judges are simply selected and appointed, from amongst the Judges themselves, without need for separate nomination and confirmation.
How many Associate Judges have been elevated to the position of CJ? I presume all underwent nomination and confirmatio anew.
Glad it helped! 
28 USC § 3, entitled “Vacancy in office of Chief Justice; disability” provides:
This statutory section confirms that when the office of Chief Justice is vacant, the senior justice acts with the powers and duties of the Chief Justice, but does not become Chief Justice. Instead, a new Chief Justice must be appointed to fill any permanent vacancy in the office.
In contrast, the lower federal courts designate their Chief Judges from the judges regularly appointed to the court for terms of up to seven years based on a statutory formula involving their seniority and other factors. For instance, 28 USC § 45(a) sets forth the procedure for selecting the Chief Judge of each of the circuits of the federal Court of Appeals:
The remainder of the section provides for what happens if there is no otherwise qualifying judge, how long the term lasts, etc.
Constitutionally, there is no reason that Congress could not provide that the Chief Justice is designated from among the Supreme Court justices by some similar formula. However, the tradition from shortly after the Constitution’s adoption has been that the Chief Justice is a separate appointment from the Associate Justices. Monkeying about with those sort of traditions, particularly with regard to the Supreme Court can be politically fraught, as FDR found out with his “court-packing” plan.
I agree.
What was said above. To me, the most direct reading of the law is that Chief Justice and associate justice are two separate jobs. So they require a person to go through the full process to be appointed to the job. A President moving an associate justice into the Chief Justice position would be no different than a President moving his Attorney General into the position. (Or a President moving his Attorney General to the Secretary of State position.)
Even if you already hold a job on that level, you still have to be nominated and approved by the Senate for the new job just as if you were a nominee off the street.
I think this answers my question, Billdo. That makes it pretty clear (to me, anyway) that Congress has designated the Chief Justice as a separate office from the remaining Justices for purposes of appointment and confirmation. And having been appointed as C.J. in that manner, the incumbent would hold that office “during good Behavior,” per Article III, Section 1.
Aren’t some of the traditions of CJ the work of John Marshall, when he was CJ for 34 years? Things like the CJ will decide who writes the opinion for which bloc he is in, and the senior justice in the other bloc will do the same? Not that you have to have one majority opinion and one dissenting, but justices prefer it. Marshall did a lot to expand the Court’s power, in part he was a Federalist when the Federalists were on the path to extinction.
I don’t think a CJ makes a great deal more and each justice only has one vote. The power comes from persuasion. At least one AJ, Potter Stewart, declined a nomination to CJ to replace Earl Warren because his reading of court history was an AJ becoming a CJ has a tough transformation (He also wanted to avoid any adverse publicity for his wife).
So I sounds like there is no other reason than Congress (as the creators of the judiciary) has agreed with the executive branch to do it by separate appointment but could change the statute tomorrow to make the CJ simply the most senior member of SCOTUS.
Your naivete is both touching and endearing…you little scamp!
If you have a line of argument, feel free to post it.