A slightly irrelevant question about the SCOTUS

[quakerboy]

Why does the President get to pick the replacement for the Chief Justice?

I understand why the president gets to pick the people to replace retiring justices. Why why does he get to pick who is the chief justice? Why wouldn't that position go to the the longest serving justice, or the justice that is elected chief by their piers, or something of that nature?

I dunno why I ask, it just struck that President Obama could replace Kennedy in his second term, and then president Grayson could replace Scalia(hunting accident) and Thomas(impeached for being a thieving lying dirty SOB) and Alito(resignation due to refusal to live in a country with a single payer healthcare system), and yet John Roberts would remain the chief justice. That seems irksome.

[ProgressiveProfessor]

1. Actually the President nominates all SCOTUS justices

There are two kinds, associate and the chief justice. One is expressly nominated for either position.

[PoliticAverse]

2. Article II, Section 2, paragraph 2....

Last edited Sun Apr 1, 2012, 03:31 AM - Edit history (2)

"He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments."

( http://www.archives.gov/exhibits/charters/constitution_transcript.html )

establishes the right of the President to nominate the Justices of the Supreme Court and all other Officers of the United States.

The Constitution is vague on the Chief Justice, only mentioning the office as follows:

"The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present."

Because of Article II, Section 2, paragraph 2 the President has traditionally nominated the Chief Justice.

Due to the Constitutional vagarity it has been suggested that other methods be used to choose the Chief Justice
(for example see: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=958829 ) but there doesn't seem to be any
significant movement to change the current Presidential nomination method.

Note that Congress has provided that:

"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."

( http://www.law.cornell.edu/uscode/text/28/3 )

[Igel]

3. Why not?

It prevents jockeying for power among the SCOTUS justices. No "vote for me and I'll vote this way on this case." Helps prevent one more potential conflict of interest.

Moreover, the chief justice doesn't have much more formal authority as far as the court is concerned than any others.

He sets the agenda in meetings to decide what cases to adopt, but other justices can append additional cases for review and he still gets just one vote.

He speaks first and presides over the hearings, but still has to follow some sort of reasonable procedure and in the end just gets one vote. His power comes from being able to argue first. Still, he often winds up in the minority so let's not overstate that "authority."

If he's in the majority on a court decision, he decides who'll write the opinion. He can choose himself. Consistently, if he's a real masochist. The opinion still has to be signed onto by everybody else, who could append their own reasoning.

He speaks for the court. Moreso in the past than in the present, where all 9 have easy access to the media.

He has rather more authority when it comes to presiding over impeachment hearings. That's not exactly a common occurrence.

Mostly, though, he's chief administrator for the entire federal court system and presides over the group that sets the rules. He also is the advocate for the court system before Congress and for the last 10+ years has argued properly but not persuasively for increased salaries for federal judges. And for filling as many vacant positions as possible, and has done so on a non-partisan basis.

He does get to appoint judges to some administrative courts; if you obsess over some of the Patriot Act provisions then that might be important, since one of the courts approves wiretaps and surveillance.

[quakerboy]

4. Wouldnt a seniority system work just as well

to prevent any power plays, and make a bit more sense?

One would hope that the longest standing SCOTUS justice would have a good handle on how the whole thing works and how to keep it all running smoothly. Dropping it on a newcomer seems less stable, to me.