SCOTUS: Promote from inside?

September 4, 2005 8:10 PM

Is there a reason one of the existing Supreme Court justices isn't "promoted" to Chief Justice?

It would seem more logical to promote, if you will, from experienced candidates, rather than stick a nooB into the top job. I mean, the words "Chief Justice Thomas" certainly makes me quake in terror, but, still, why don't they move an existing justice into the top spot? Jealousy in the ranks?

posted by Thorzdad to law & government (21 comments total)

Yes. Three hearings would be required (one to replace each of the departing justices, and one to promote the "internal" guy to chief justice).

Since things are already pretty polarized, it would be politically easier, probably, just to make one of the new guys the chief justice.
posted by curtm at 8:13 PM on September 4, 2005

The oldest member of the court becomes Chief Justice when the old CJ dies. He keeps the job till the Senate confirms the President's nomination for CJ.
posted by evariste at 8:36 PM on September 4, 2005

So until then, Stephens is CJ.
posted by evariste at 8:37 PM on September 4, 2005

It is possible to do such a promotion. I heard on CNN that Scalia or Thomas are both considered plausable nominations (ugh).
posted by abcde at 8:51 PM on September 4, 2005

It's rare to promote someone to CJ from within. It's considered polarizing to the other members of the Court and if you think of it from the perspective of the person in power who is trying to get one of "his guys" in the highest spot possible, it's not the best way to go about that. Also see this short AskMe question.
posted by jessamyn at 8:56 PM on September 4, 2005

I thought Rehnquist was already on the court and was promoted to CJ. I think promoting a current member to CJ is rare but not unheard of.

My memory is that the position of CJ is mostly just administrative.
posted by Carbolic at 9:10 PM on September 4, 2005

I refreshed my recollection a bit. The only power assigned to the CJ by the Constitution is to preside over the Senate if the president is impeached. The CJ has no extra vote or veto power when it comes to deciding cases. The CJ does decide who will write the majority opinion.
posted by Carbolic at 9:17 PM on September 4, 2005

3 of the 16 Supreme Justices of the United States (Rutledge, Hughes and Rehnquist) previously served as Associated Justices.
posted by m@ at 9:38 PM on September 4, 2005

As has been pointed out elsewhere, if Bush decides to promote one of the Gruesome Twosome, he will in effect be filling three slots: O'Connor's, Rehnquist's, and the promoted Justice's. Who says lame ducks have no teeth?
posted by rob511 at 10:21 PM on September 4, 2005

The Chief Justice has no more voting power than does an Associate Justice. The CJ does, however, have a fair bit of power to guide the Court's proceedings, affecting procedural rules. The CJ may also, if in the majority on a case, decide whether to write the opinion himself or to assign it to a different Justice. The position is known generally as "primus among the pares," which means "first among equals."

The CJ also serves as the Chancellor of the Smithsonian Institution, not that that position carries a great deal of power, and as the head of the Judicial Conference of the United States.

Bush certainly could promote one of the current Associate Justices, but this has, as m@ noted, only been done a few times. Some have suggested that he will switch the Roberts nomination, so that he will be up for Chief Justice instead of, as now, Associate Justice, and then appoint someone new to replace Justice O'Connor. And some have suggested that Bush will try to leave a positive mark on history by appointing the first female Chief Justice.

Regardless, I very much doubt that the Senate would be likely to confirm anyone much worse than Rehnquist was, so I'm not that worried.
posted by cerebus19 at 10:49 PM on September 4, 2005

Thanks very much for this question. Even from reading all about Rehnquist's death I didn't pick up that it wasn't normal to promote an existing judge to CJ. And yeah, I agree that it's very strange that it isn't.
posted by loquax at 11:37 PM on September 4, 2005

The Chief Justice can decide which cases are taken.
posted by null terminated at 11:55 PM on September 4, 2005

The Chief Justice can decide which cases are taken.

No. It takes 4 votes to decide to hear a case.
posted by gyc at 12:08 AM on September 5, 2005

The main reason it doesn't happen more often is that Presidents prefer to "put their own stamp" on the court, since even the CJ's limited powers are widely considered to give the court under his administration a personality -- hence the Rehnquist court, the Warren court, etc. Whether that influence is real is something oft debated.
posted by dhartung at 12:51 AM on September 5, 2005

Aside from reducing the number of hearings involved, I can see why it'd make tactical sense, from Bush's point of view, not to have Stevens running the court as Acting Chief Justice when the session opens next month.
posted by Vidiot at 8:01 AM on September 5, 2005

As noted already, the biggest argument against it, especially in our current political environment is that it requires 3 confirmation hearings instead of 2.

In this specific instance, there's another issue. A good chief justice works to build consensus. Scalia frequently goes out of his way to argue that his fellow justices are wrong -- not terribly conducive toward encouraging harmony. As for Thomas ... well, I've said for awhile that they should let him retire and just let Scalia vote twice.
posted by pmurray63 at 12:38 PM on September 5, 2005

I think it's also because it's known that Thomas isn't the sharpest nail in the toolbox and that Scalia is a divisive influence on the Court whose elevation wouldn't necessarily consolidate the conservative cause.
posted by footnote at 1:09 PM on September 5, 2005

(see supra pmurray63)
posted by footnote at 1:09 PM on September 5, 2005

Since its being discussed, another perk to being CJ: The PIMP robe
posted by tetsuo at 2:07 PM on September 5, 2005

I think it's also because it's known that Thomas isn't the sharpest nail in the toolbox

No, it's not known at all. It's just something people that don't like Thomas have made up and spread and somehow have become gospel to the anti-Thomas faction. I've read many of his opinions and IMHO they're generally well written and reasoned.
posted by gyc at 2:16 PM on September 5, 2005

A couple of people have noted that Scalia is quite abrasive and thus would not be suitable for a job that really requires a good degree of diplomatic skill. Plus he's a little long in the fang at 69.

Thomas is by no means a dummy - far from it - but he is a tremendously polarizing figure and Bush obviously has no desire for a rehash of all that went on in his first confirmation hearing.

Kennedy. . . well, let's just note that the Republicans would start impeachment proceedings if he nominated him.

One of Roberts's significant advantages is his youth. He'll very likely last as long as Rehnquist did.
posted by yclipse at 5:36 PM on September 5, 2005