The President can nominate someone not on the court to be chief justice, right?

As I understand it, if W. Rehnquist does retire / expire, G.W. can nominate someone not presently on the SCOUS (is that the correct abbreviation here?) to be Chief Justice. In fairness, it seems wise to nominate someone already on the court. I hear that Scalia might be a choice (shudders all around, I’m sure), and even Clarence Thomas (although I also understand that he doesn’t want it).

What is the precedent for going outside the court? I don’t even remember if Rehnquist was an outside choice. Does congress have to approve the Chief Justice nomination, or just the nomination of a new person to the court? I.e., if G.W. nominates Thomas for Chief Justice, am I going to have to hear about pubes on coke cans all over again, or is the President’s nomination enough since he is already on the court?



Rehnquist was already on the SC when he was appointed Chief Justice. He was first put on the court by Nixon and made Chief by Reagan. There’s no requirement that the Chief Justice be chosen from the existing court. Howard Taft became Chief Justice after his presidency. Yes, if Thomas gets nominated for CJ, he’ll go through another confirmation process, hopefully without the same sordid details as before. I’m not so sure that Scalia will have that tough a time being confirmed as CJ since he had near unanimous approval when first confirmed.

The president can appoint anyone he wants to the SC, or to be CJ. He doesn’t even have to be a lawyer or a judge, although the odds of a non-lawyer surviving the confirmation process are nil.

In fact, a fair number of our CJs have been appointed directly to the court as CJ without having been Associate Justices first.

Sadly, the atmosphere in Washington has changed greatly since the time Scalia was appointed. I don’t believe your assessment of Scalia’s chances of sailing through the confirmation process are good.

I think the President will appoint an outsider to be CJ when the time comes. Considering the polarized atmosphere in Washington these days, he’d rather just have one confirmation hearing than two (one for Scalia/Thomas and then one to replace him as an Associate Justice).

Zev Steinhardt

We also know more about him.

Anyway, I agree with the above posters. Most of the Court’s chief justices had not previously served as associate justices, I believe. The only qualifications for a seat on the Court – any seat – are nomination by the president and confirmation by the Senate. As zev notes, you don’t even have to be a lawyer, although I don’t know of any non-lawyer ever being nominated.

So start lobbying for yourself now!


That darn Mr. Bush STILL hasn’t called me with an offer.

The venerable Polycarp has thoughtfully itemized the Chief Justices in this thread, indicating that 13 of 16 Chief Justices were nominated from outside the Court versus 3 who were promoted from Associate.

My understanding is that it is more likely he would appoint someone who is not already a Justice, because that would only involve one confirmation, whereas appointing an existing member would require two (one for the nominee to move to the CJ spot, and another for a new Associate Justice).

I wonder about this. Wouldn’t it be better for Bush’s agenda to appoint an existing member, thus vacating a slot and allowing him to nominate another conservative to fill the newly-vacated slot?

The Chief is extremely powerful. Bush may feel that his agenda will be better served by a Chief that is very closely sympatico than a Chief Scalia or Thomas, with whom Bush has already had serious disagreement, + another associate justice at the bottom of the totem pole.

Plus, as zev has noted upthread, President Bush has not had a lot of success in the Senate so far this year. Who knows if the situation will change before Rehnquist leaves the Court? But if it doesn’t, Bush may feel the additional political capital needed to get two confirmations isn’t worth the additional juice.


Gee, that’s the thread I was hoping to find when I did a search before posting this thread (I knew I couldn’t have been the first with these questions). I refuse to believe that this is a result of my poor searching skills, so I’m afraid I must go and pit the SDMB for its poor AI skills in deciphering my query. :wink:


Either way, GWB gets to appoint a new (presumably conservative) justice. If he nominated Scalia for Chief Justice, for example, then he would nominate a brand-new (to the court) Associate Justice. If he appointed an outsider to the post of Chief Justice, then that person would be a new (presumably conservative) member of the court, in addition to all the current members (except Renquist). Remember, the Chief Justice gets one vote just like the other eight Justices in any decision.

Fortunately (for non-conservatives, that is) when Renquist retires it would be a conservative justice that the new justice would be replacing, thus keeping the liberal-conservative balance about the same. I know it never works out like that exactly, but in general terms I believe that is the case. Of course, many thought that Renquist’s conservatism was the worst it could get… until they saw Scalia and Thomas. So who knows how Renquist’s retirement will ultimately affect the court?

If one of the liberal or moderate justices leaves during Bush’s term, though, all bets are off!

(I hope I did OK keeping this factual and out of great debate territory :slight_smile: )

While this is true, I believe it implies that the Chief is not much more powerful than any other justice. That is certainly not correct. The Chief runs the procedureal aspects of the Court. Moreover, whenever he’s in the majority, he picks who gets to write the opinion. It’s generally accepted that sometimes chief justices will join a majority with which they disagree in order to write a narrow or weak opinion. Even when that isn’t the case, by choosing the person who writes the opinion, the Chief wields great power over the precise interpretation it will be given because he knows what all his colleagues are thinking, he knows their writing styles and their judicial philosophies, and so he has a good idea of how the nuances will change depending on who is assigned to write. That’s a tremendous power.


Presidents have been surprised in the past to find that judges were not always what they expected. (Earl Warren was a prime example of this.) President Bush may feel more comfortable moving a known quality like Justice Scalia or Thomas into the Chief Justice spot rather than take the risk of appointing a new judge to the top spot who might behave differently then expected.

Can Bush appoint Dick Cheney? Thus leaving the VP slot open for Bush’s proposed successor without seeming to slight Cheney?

He could appoint Cheney, but I think his chances of confirmation are about nil.

Besides Cheney has stated numerous times that he does not want to run for the Presidency.

Zev Steinhardt

Exactly - so how else does he get shot of Cheney to get his designated successor into place? I really don’t expect Cheney to be VP in 2007.

It also appears that Chaney (Official White House Bio) is not a lawyer.

Athough the Constitution does not require a Supreme Court Justice (or Chief Justice) to be a lawyer, as previously mentioned, this would make Senate confirmation challenging, if not impossible.

If you are wedded to the idea, there are much simpler ways of getting rid of a vice president than trying to appoint him to the Supreme Court. The easiest being – Look, I want to appoint a successor; would you consider resigning for “health reasons”? It’s far more likely to happen.

No, the VBB search function that the SDMB uses has a very high reputation around here for its breaking of new ground in Artificial Stupidity! :wink:

I don’t think Bush has a successor as such; Cheney has stated he doesn’t want to run, Rice and Rumsfeld would be longshots, his brother Jeb doesn’t seem interested in going for 2008.

This assumes that the Vice Presidency is a stepping stone to the presidency. Actually, the only VPs this century who were elected to the Presidency directly after the President they served under were Taft and GHW Bush. It’s only really a stepping stone to the Presidency if your predecessor happens to die.