Roberts Nominated to Be Chief:

President Bush on Monday nominated Judge John Roberts to succeed the late William H. Rehnquist as chief justice of the United States. That was fast. (HT: Jurisprude in a Comment to the prior post).

Now I'm really wondering--if Roberts is being nominated to replace Rehnquist, does that mean that O'Connor is still on the Court until her successor is nominated and confirmed?

Looks like maybe Sasha has a job after all.

While I recognize the political expediency of Robert's nomination as chief, I can't help but be somewhat disappointed for Scalia. Through gravitas alone, he seemed the "worthy" choice. This isn't implied to disparage Roberts. Rehnquist forcefully asserted that the CJ's influence is grossly overstated and is logically, primarily administrative. I'm sure Roberts will be as a competent administrator. But Scalia would have rewarded intellectual consistency - something lacking in the judge hunts.
9.5.2005 10:36am
Isn't that insulting to the other Supreme Court Justices? I mean they have tenure and experience on the court. Roberts has no experiences as a Supreme Court Justice.
9.5.2005 10:37am
Sha_kri: No, it isn't insulting to the other Supreme Court Justices. Most Chief Justices are not appointed from the ranks of the Associated Justices (ex: Earl Warren, John Marshall).
9.5.2005 10:51am
M. Lederman (mail):
Yes, SOC remains on the Court until her successor is confirmed or until she resigns, whichever comes sooner. I expect that she will resign, rather than sit during the first session or two of arguments, for at least three reasons: (i) It has been reported that her husband is ill, and that she wishes to devote her time to him; (ii) There is recent historical precedent -- under similar cirumstances, Justice Marshall rescinded his "conditional" resignation, and made it immediate, when Thomas's confirmation was delayed; and (iii) Most importantly, SOC must assume that her successor will be confirmed before the end of the year, and thus before any closely divided decisions are issued, which would mean that her sitting during October and November arguments would have been fairly meaningless, as those cases would either be decided without her vote, or reargued.

More along these lines from Tom Goldstein at SCOTUSblog.
9.5.2005 10:51am
Stuart Buck (mail) (www):
Why couldn't Roberts still be viewed as being O'Connor's replacement? In other words, why can't it be the case that (1) O'Connor's replacement will be the new Chief; and (2) Rehnquist's replacement (whenever that occurs) will be an Associate Justice? Who says that can't happen?
9.5.2005 10:52am
Anonymous Jim (mail):
Hardly surprising that Scalia (or Thomas for that matter) was not chosen as the nominee. They already "have to" have two fights about nominees, why provide a third? Not that Scalia could not win approval of the Senate, but it would provide dems the opportunity to excerpt his language from decisions in a slanted manner. Also, from reading his writings, he seems harsher on his colleagues when they disagree with his reasoning. I have no idea how he and his colleagues interact, but I would think there may be something in his writings which suggests that he is not the best for forging consensus (to the extent that is important in a CJ). Finally, I suspect that some around here believe that Thomas is more "intellectually consistent" if that is a primary standard for elevating an associate justice to chief.
9.5.2005 10:53am
I have the same emotional reaction Sha - but I have to be honest and think: Not really. 11 of the 16 prior CJ's were nominated from the outside. Taft, for instance, coming in from the outside for instance - confirmed the day he was nominated!!

But WR was CJ for a very long time. You have a serious candidate in Scalia. Had she not announced her resignation - S.O'C would have been a reasonable candidate. I realize the precident and political expediency - but I can't help but have the same reaction. We've been living with some of these people for a long time and feel there might have been other actions.
9.5.2005 10:54am
The real question is - What robe will Robert's wear as the Chief Justice? Will he wear Rehnquist's own gold-striped robe or he wear the original Chief Justice robe?

Any thoughts?
9.5.2005 10:56am
Lawbot - He's got to wear the gold stripe robe! I loved Tim Russert feeling sympathy for the impeachment hearing - as politicians looked up at the presiding CJ; Tall - hunching - imposing - and wearing lighting bolts on his black robe!!
9.5.2005 10:58am
Stuart Buck (mail) (www):
After all, we have all been assuming that naming a "Chief" is separable from naming a "Justice." Bush could -- at present -- name Scalia to be Chief, name one nominee to fill Rehnquist's spot, and another nominee to fill O'Connor's spot. But were that the case, it is not as if Scalia would have filled Rehnquist's spot as a Justice. That vacancy would still be open.

Doesn't this then mean, logically, that even though Roberts is being named "Chief" as well as a "Justice," he is not necessarily "replacing Rehnquist"? Instead, he could be viewed as "replacing O'Connor and at the same time being named Chief."
9.5.2005 10:58am
Josh (www):
Because the Chief Justice seat is mandated to exist by the Constitution, and not just congressional legislation. He could be viewed as a replacement for O'Connor on an ideological level, but seat-wise, Roberts will be filling the CJ slot (the Contitutional one) and not an AJ slot that exists only out of congressional legislation. Thus, O'Connor's seat currently has no one nominated to fill it yet. And under the terms of her resignation letter, that means she will not leave as of yet (assuming she does not amend her resignation and makes it immediately effective, regardless).
9.5.2005 11:00am
Josh - Not to be dim - but the necessity of having a CJ isn't in Article III - is it? It's just statutory - right?

I think the issue here is political. He's got an immediate vacancy and a proposed one. He could nominate for Justice O'Connor's spot if he so chose. It don't see a constitutional or even statutory problem.

I believe the world here is political not procedural.

9.5.2005 11:06am
The term "Chief Justice" is not mentioned in Article III, but it is mentioned in Article I. Take this piece of information, and the fact that Article III creates "one supreme court," and you logically have a Chief Justice presiding over the Supreme Court - the only court created by the Constitution. (Thus, in effect, the Chief Justiceship is the only judicial seat created by the Constitution itself).
9.5.2005 11:12am
Stuart Buck (mail) (www):
I don't see what this has to do with my question. Whether the position of "Chief" is authorized obliquely by the Constitution, or by statute (28 U.S.C. 1), doesn't answer my question.

But I suppose this is all just semantics anyway. The bottom line is that there are two vacancies, one of which is for Chief, and Bush is going to fill all the vacancies.
9.5.2005 11:19am
Josh -

It's a good point and I like it, but I'm not fully convinced. For isntance, rather than a constitutionally created office, you could just as easily satisfy Article 1 through administrative means. Just as the senate shall elect a president in the absence of a VP. Could be satisfied by Stevens being the acting CJ at the moment.

I'm still not persuaded that there is a constituional priority requiring that the next appointment be for CJ.
9.5.2005 11:22am
Stuart -

You're probably right - we're off on a siding - except for Josh's actual point. There is really only 1 vacancy at the moment. Sandy isn't going (at this moment) until there is a successor.

Did you see Dodd's call for her to rescind her resignation?!?! I can't imagine what's going on in his mind.
9.5.2005 11:23am
Zywicki (mail):
Thanks, I had missed the reference to the Chief Justice presiding over impeachments. Is that the reference you have in mind, or am I missing something else in Article I too? Query--if the Chief Justice is a constitutional office, what is the authority for allowing other justices to preside a Chief Justice if the Chief is unavailable? For instance, if the Chief were incapacitated and temporarily unable to preside over an impeachment trial, could an Acting Chief perform his duties? This is not rhetorical--I'm really trying to figure out what exactly the constitutional status of the Chief is relative to the Associate Justices (as opposed to status created by legislation or internal rules).
9.5.2005 11:26am
As a thought experiment, imagine that Rehnquist were an associate rather than the chief justice. What would O'Connor's status be when/if Roberts is confirmed?

I think it would be pretty clear that, in this scenario, O'Connor's resignation would be effective upon Roberts' confirmation. Roberts was nominated to replace O'Connor; that nomination was not recinded; the Senate confirmed him. Case closed.

Someone (Stuart Buck?) might argue that Rehnquist's and O'Connor's seats are indistinguishable in this scenario, and that Roberts' confirmation might just as well be understood as replacing Rehnquist. But there is no reason to prefer this understanding to one where O'Connor is replaced: if the seats are indistinguishable, then they are indistinguishable, and there is no reason to argue that it is Rehnquist being replaced instead of O'Connor.

There is a reason to understand Roberts as specifically O'Connor's replacement in this thought experiment, though. By making her resignation contingent on the confirmation of her successor, O'Connor's resignation implicitly assumes that the seats are not indistinguishable. It is probably an unanswerable metaphysical question whether appointees "really" replace specific justices when there are multiple openings, or whether they "really" just fill one of the openings. However, O'Connor's resignation letter seems to assume the first theory of Supreme Court seats, and so we should probably construe her intent to resign as effective upon the confirmation of her replacement, not just the next confirmed justice.

So the long and short of it is, since Roberts has now been appointed to CJ, I don't think it makes sense to understand O'Connor's resignation as effective upon his confirmation.
9.5.2005 11:39am
I did have in mind the reference made to there being a Chief Justice presiding over the impeachment hearings. In the absence of an appointed Chief Justice, then it would seem the insitutions of seniority on the actual court suggest something akin to there being an "acting chief justice" like what we currently have right now. Intuitively then, this "acting chief justice" would have the additional duties of office until an actual CJ is confirmed(although this example is a combination of Con law and statutory law, take for instance the institution of Vice President becoming the President until the next Presidential election). This would seem to make sense for the operations of the Court, especially since the CJ's additional responsibilities of office are more administrative and ceremonial than anything else. The topic of an incapacitated CJ, though, is most troubling since there currently exists (at least to my knowledge) no law akin to Amendment 25 for a Constitutional office such as the CJ. It is easy to imagine a CJ becoming a senile old man. What if the CJ goes mad, but refuses to resign? Should the method of removal be impeachment (for no longer having "good beviour?")?
9.5.2005 11:50am
John Jenkins (mail):
Article 1, § 3 says zippy about the Supreme Court. There is nothing to indicate in the Constitution that the "Chief Justice" of Article 1, § 3 is even a member of the Supreme Court. That might be what they wanted, but that's not what anyone said until Congress passed the Judicary Act.

Today, "[t]he Supreme Court of the United States shall consist of a Chief Justice of the United States and eight associate justices, any six of whom shall constitute a quorum." 28 U.S.C. § 1. There's no reason to believe that an acting Chief Justice could not do anything except for preside over an impeachment, since everything else he does is purely statutory, and one could argue that an acting chief is as good in that position anyway because the Chief Justice mentioned there is not necessarily the Cheif Justice of the Supreme Court of the United States. (though it always has been).
9.5.2005 11:59am
Josh -

I've been noodling on your point this morning. Here's the best I've dredged up in a short time. The only mention of the CJ in the Federalist papers is Fed 65.

"the benefits of that union will be obtained from making the chief justice of the Supreme Court the president of the court of impeachments, as is proposed to be done in the plan of the convention; while the inconveniences of an entire incorporation of the former into the latter will be substantially avoided."

Basically, they were debating how to handle the impeachment of a president. They original proposal was to have the enire Supreme Court sit in judgement. But they felt that woudl be too cumbersome. Hence, they now suggested that the chief justice (uncapitalized) would sit as procedural expediency. No other thought seems to have gone into the office.

Other Fed papers- (82 for instance) still talk about distinct justices instead of distinguishing the CJ.

I like this one, but it is off topic given that the President has appointed fo rthe CJ anyway.
9.5.2005 12:11pm
Anonymous Jim (mail):
"that nomination was not recinded"

I suspect that Robert's nomination to replace O'Connor has been rescinded or at least will be by noon tomorrow. Here is what Thomas has for the Roberts nomination:

DATE RECEIVED: July 29, 2005
John G. Roberts , Jr., of Maryland, to be an Associate Justice of the Supreme Court of the United States, vice Sandra Day O'Conner, retiring.

REFERRED TO: Senate Judiciary


Floor Action: July 29, 2005 - Received in the Senate and referred to the Committee on the Judiciary.


I am no parliamentarian, but if that nomination is not rescinded (or modified to make it null), replaced by a revised nomination and appropriately placed on the Judiciary Committee's calendar before 1:30 p.m. tomorrow, I would think the Dems would have a legitimate procedural beef.

Which, of course, begs the question, "Why more than two months after her (contingent) resignation, do we not have a nominee named to replace her?"
9.5.2005 12:12pm
This may seem like a stupid question, but how do the "Justice Slots" affect office space? Presumably there is a "Chief Justice" office, but do the other justices stay in their offices for their whole career, or do they change offices as they become more "senior". And I presume seating arrangements on the bench are in accordance with seniority? I am just trying to get a sense of whether there is any reality to this sense of "Justice Slots" or whether that is just an artifact of the charts in Con Law books. I think the latter. When a Justice retires, it just means that there is an opening on the Court. I guess, by this rationale, Scalia replaced O'Connor - so she has already been replaced.
9.5.2005 12:15pm
Buck Turgidson (mail):
I have a tangential, but, hopefully, not a stupid question. Since Roberts has not yet been confirmed, does the nomination for CJ mean that he has currently been nominated for both slots? This may be purely administrative issue, but if true, it could create a logistical nightmare. For one, Dems will surely demand to reschedule the hearings and raise the level of scrutiny. And the whole process may end up in court before any hearings.
9.5.2005 12:17pm
From what I've seen Roberts would not be nominated for both slots. When Bush made the decision he's initiating the process all over again albiet in a pro-forma way. He is or already has withdrawn Roberts as a nominee for associate justice and is then sending a seperate nomination for CJ to the senate.
9.5.2005 12:28pm
Mattattack -

While the other offices are selected subject to seniority - the CJ has a designated office nearest the conference room.

Rehnquist bemoaned the fact that he had to switch offices from his view of the capital to the one adjoining the conference room.
9.5.2005 12:38pm
Rhadamanthus (mail):
It's interesting that there is some sympathy for Scalia. Personally I would be surprised if he wanted the position. Yes its would mean the court would become the "Scalia" court but he has always struck me as someone who relishes independence and pure law. The Chief's position adds untold administration to the job description. Further it is clear that Rehnquist moderated, at least in public, his views after ascending to the top job. I doubt Nino would have wanted either of these to happen. I recall that there were similar rumours that Justice Stewart ruled himself out of the running to replace Chief Justice Warren.

As for the nomination of Judge Roberts, surely a major benefit is that only two confirmation proceedings will be needed? As BigBen pointed out he has withdrawn Roberts from the Associate position and a new member for Chief only gets one hearing.
9.5.2005 1:14pm
BobVDV (mail):
Scalia would have ignited a major Senate war, and therefore may not have been confirmable. By nominating Roberts for SOC's seat, Bush signalled the Senate that he wasn't going to spark a filibuster by nominating a doctrinaire conservative. Bush has followed through by nominating Roberts for CJ, in the belief that if Roberts had generated little signficant opposition so far, he would likely be confirmed as CJ. My guess is a 75-25 vote in favor of confirmation. Shall we start a pool?
9.5.2005 1:20pm
Rhadamanthus (mail):
Nice idea on the pool but for me it will be an easier confirmation though it will depend on who the second nomination is and whether POTUS sends them as a pair or individually.
9.5.2005 1:41pm
One could argue that an acting chief is just as good as a actual chief, but sticklers for the constitutional procedure are going to demand that a CJ be more than just acting in that role.

While it is logically true that the CJ mentioned in Article I could be separate from the CJ of the Supreme Court, I think that when you look at the Federalist Papers, and especially the past two impeachment hearings of Presidents Johnson and Clinton, that the legislative intent was referring to the CJ of the judiciary (or of the "one Supreme Court).

In this sense, as the SCOTUS is required to exist by Article III, and not just legislation, and as the legislative intent (seen through the historical actions of past legislatures) have indicated that the CJ of Aricle I is the same as the CJ of the Supreme Court, the CJ role is required to exist under the Constitution.

This does not mean that the CJ's power could not be relegated to fewer areas. Of course much of the CJ's other functions besides presiding over impeachment could be taken away if Congress strips jurisdiction from the Court and the judiciary (McCardle).

And this does not mean that a Court could not necissarily function without an official CJ, as the enabling legislation states about the quorum that any six of which would count.
9.5.2005 1:42pm
BobVDV (mail):
The authority for Justice Stevens acting as Chief is 28 U.S.C. 3, which provides:

Whenever the Chief Justice is unable to perform the duties of his office or the office is vacant, his powers and duties shall devolve upon the associate justice next in precedence who is able to act, until such disability is removed or another Chief Justice is appointed and duly qualified.
9.5.2005 2:09pm
Sean O'Hara (mail):
Seems to me the most logical reason for picking Roberts over Scalia is legacy. A Scalia court might last five years, ten at most, whereas Roberts, barring accident and illness, should last an entire generation.
9.5.2005 2:14pm
Rhadamanthus (mail):
The legacy is certainly one reason but I think another is simply a lack of options.

The two remaining true conservatives are Scalia and Thomas. I've expressed above my reasons for thinking that Scalia may not want the position. Thomas I suspect would be a confirmation nightmare, he barely scraped in last time and the last thing Bush will want is a similar nightmare to the one his father must have had the first time around.

Stevens is too old, liberal and unpredictable.

Ginsburg and Breyer were nominated by Clinton which would probably bar them unless POTUS wanted or needed to make a show of bi-partisanship

Kennedy at times can barely seem to control his own vote, let alone control a court.

That leaves Souter who I thought was a possibility, but one who has sided with the liberals too many times.

Hence Roberts was the only one out there, an indication that the second nomination will be more in the Scalia/Thomas mode.
9.5.2005 6:17pm
Stevethepatentguy (mail) (www):
The seats are generic vacancies to be filled by the president they are not the legacies of the previous occupants. There is no reason that Roberts cannot fill the vacancy left by O'Connor and be chief justice while Bush nominates a second Justice to fill the vacancy left by Rehnquist.

Currently there are three vacancies, two justices and one "chief". The vacancy left by the death of the Chief Justice is not linked to replacing Rehnquist as one of the nine Justices; they are not linked by the constitution or by statute (28 U.S.C.).

President Bush could nominate two associate justices and elevate an existing member of the Court or can nominate two new justices with one filling the chief slot.
9.5.2005 6:28pm