When Chief Justice William Rehnquist died in 2005, I wondered why “new guy” John Roberts automatically took his place as CJ. Then I pretty much forgot about it. But with the SCOTUS in the news right now I got to thinking about it again.
It seems to me that when a Chief Justice leaves the court, it would make more sense for one of the other justices to be promoted to CJ - perhaps by appointment of the President, or a vote by the court, or simply seniority - rather than having a brand new justice suddenly become top dog.
Is it written into the constitution that it must be done that way, or is this just the convention?
A few associate justices have been promoted in that way. However, because Chief Justice is considered a separate office, that means that they have to go through Senate confirmation again. Then the new associate justice has to go through their own confirmation. With the vastly increased politicization of judicial picks, recent presidents do not want to bother with multiple confirmation fights.
It’s possible to promote from within the court (that’s where Rehnquist came from), but it requires a second confirmation. In 2005, because of the circumstances, it would have meant running three simultaneous confirmation processes (Sandra Day O’Connor had already announced her retirement), and they had enough trouble dealing with two; remember Harriet Miers? Also, if you assume that the President will want the chief justice to be ideologically sound from their perspective, that means there will be pretty slim pickings on the court. Bush probably would have been looking at Antonin Scalia or Clarence Thomas, either of whom would have been major lightning rods.
Commentators were actually discussing Roberts as a possible future chief justice during the brief window when he was nominated for the O’Connor seat, so it wasn’t a huge surprise when Bush switched him over.
I get that it’s a different position and would require two nomination processes, one for the justice to be promoted and another for his replacement. But I always thought I’d be irked if I was an associate justice for 10+ years, the chief justice gets replaced, and someone else gets to be boss on his first day on the job.
I read a law review paper awhile back suggesting that it’s actually better for the institutional dynamic to bring in a new CJ than to promote from within. Someone who’s already been a justice might have enemies or frenemies on the court and might not be as effective as a new CJ. Associate Justice Robert Jackson lobbied President Truman hard to be appointed CJ in 1946, but some of his colleagues passed the word to the President behind the scenes that they’d really rather he not get the post (it didn’t help Jackson that he came on 'way too strong and irritated Truman).
A few years later, Earl Warren, a former politician and a born schmoozer although no towering legal intellect, was able to very effectively put together a unanimous court for Brown v. Board of Education. I don’t think any justice then on the court, if promoted to CJ, could have done that.
Remember, too, that the CJ has one vote just like any other justice, but he does get to assign the writing of an opinion - even to himself - if he’s in the majority.