Fun constitutional question

[Craig234]

Especially for people who think they're 'strict constructionists':

What are the constitution's instructions on how the Chief Justice of the Supreme Court is selected?

Not 'how is it done', but say the process is challenged, how does the constitution answer?

Bonus question: what does it say about if a President wants to replace the Chief Justice with one of the Associate Justices? Say Obama wanted to replace Roberts with Kagan?

 

[Hayabusa Rider]

Question: are you looking for answers from anyone? Do you still have some of us blocked?

 

[Fern]

Are talking about Art II section?

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.

The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

It would've been nice if you had quoted the portion of the Constitution you wish to discuss, instead of having us all run out and google it.

I'm not sure art II is the relevant portion as I don't see anything specific about the Chief Justice, nor do I see anything about removing them or any Justice.

Well, after more searching Art I section 3 seems someone relevant as well:

he 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.

At this point, I see no provision allowing a President to unilaterally dismiss a justice, of any kind. But I may be missing some relevant portions of the Constitution.

I also see no provision allowing a President to switch the Chief Justice. Seems to me in light of the impeachment process described in Art I section allowing the President to switch Chief Justices would be ill advised. Prior the impeachment trial a President could appoint a Chief Justice more favorable to him to preside.

Fern

 

[Craig234]

Are talking about Art II section?



It would've been nice if you had quoted the portion of the Constitution you wish to discuss, instead of having us all run out and google it.

No, that's sort of the point.

Your version would be sort of like saying 'guess her age, first to answer 35 wins!'

Yiou don't have to play.

I'm not sure art II is the relevant portion as I don't see anything specific about the Chief Justice, nor do I see anything about removing them or any Justice.

Well, after more searching Art I section 3 seems someone relevant as well:



At this point, I see no provision allowing a President to unilaterally dismiss a justice, of any kind. But I may be missing some relevant portions of the Constitution.

I also see no provision allowing a President to switch the Chief Justice. Seems to me in light of the impeachment process described in Art I section allowing the President to switch Chief Justices would be ill advised. Prior the impeachment trial a President could appoint a Chief Justice more favorable to him to preside.

Fern

As I assume you know, you didn't find anything saying how the Chief Justice is selected.

 

[Agent11]

http://en.wikipedia.org/wiki/Chief_Justice_of_the_United_States

The Chief Justice is nominated by the President of the United States and confirmed to sit on the Court by the United States Senate. The U.S. Constitution states that all justices of the court "shall hold their offices during good behavior," meaning that the appointments only end when a justice dies in office, resigns, or is impeached by the United States House of Representatives and convicted at trial by the Senate. The salary of the Chief Justice is set by Congress; the Constitution prohibits Congress from lowering the salary of any judge, including the Chief Justice's, while that judge holds his or her office. As of 2010, the salary is $223,500 per year, which is slightly higher than that of the Associate Justices.[2]
While the Chief Justice is appointed by the President, there is no specific constitutional prohibition against using another method to select the Chief Justice from among those Justices properly appointed and confirmed to the Supreme Court, and at least one scholar has proposed that presidential appointment should be done away with, and replaced by a process that permits the Justices to select their own Chief Justice.[3]
Three serving Associate Justices have received promotions to Chief Justice; Edward Douglass White in 1910, Harlan Fiske Stone in 1941, and William Rehnquist in 1986. Associate Justice Abe Fortas was nominated to position of Chief Justice of the United States, but his nomination was filibustered by Senate Republicans in 1968. Despite the failed nomination, Fortas remained an Associate Justice until his resignation two years later. Most Chief Justices, including John Roberts, have been nominated to the highest position on the Court without any previous experience on the Supreme Court; indeed some, such as Earl Warren, received confirmation despite having no prior judicial experience.
There have been 21 individuals nominated for Chief Justice, of whom 17 have been confirmed by the Senate, although a different 17 have served. The second Chief Justice, John Rutledge, served in 1795 on a recess appointment, but did not receive Senate confirmation. Associate Justice William Cushing received nomination and confirmation as Chief Justice in January 1796, but declined the office; President Washington then nominated, and the Senate confirmed, Oliver Ellsworth, who served instead. The Senate subsequently confirmed President Adams's nomination of John Jay to replace Ellsworth, but Jay declined to resume his former office, citing the burden of riding circuit and its impact on his health, and his perception of the Court's lack of prestige. Adams then nominated John Marshall, whom the Senate confirmed shortly afterward.[citation needed]
When the Chief Justice dies in office or is otherwise unwilling or unable to serve, the duties of the Chief Justice temporarily are performed by the most senior sitting associate justice, who acts as Chief Justice until a new Chief Justice is confirmed.

 

[Craig234]

No comment?

 

[Agent11]

Nothing really to comment about, it isn't mentioned much in the constitution, however there is longstanding precedent for it to be done a specific way.

Any attempt to manipulate the supreme court for political purposes (like changing the chief justice to someone who's of an ideology you prefer) should be met with swift action in my opinion(burn with fire)

 

[Charles Kozierok]

No, that's sort of the point.

Your version would be sort of like saying 'guess her age, first to answer 35 wins!'

Yiou don't have to play.

What exactly is the point of a thread asking a question that can be answered by looking it up in an established document?

Nobody seems to be able to tell what your point is in this thread, including me. Please make some sort of point or argument, or I'm going to close this thread.

Thanks.

 

[EagleKeeper]

IMO think Craig may be hoping some one can find some obscure section that would allow a President that is pissed off at the Chief Justice to replace them with another justice.

Hissy fits by a president are then allowed in the constitution. remove the separation of powers

However, there does not seem to be any exemptions; the framers were smart enough to prevent pissing contests.

No ability to issue an executive order to replace with a friendlier judge.

 

[Charles Kozierok]

As Fern mentioned, the chief justice has a role in impeachment hearings. In fact, that's the only role specifically assigned to the chief justice in the Constitution, above and beyond the responsibilities of all of the members of the supreme court.

Given that, the president being able to change the chief justice would seem not only not supported by the Constitution, but specifically excluded.

 

[Craig234]

IMO think Craig may be hoping some one can find some obscure section that would allow a President that is pissed off at the Chief Justice to replace them with another justice.

Hissy fits by a president are then allowed in the constitution. remove the separation of powers

However, there does not seem to be any exemptions; the framers were smart enough to prevent pissing contests.

No ability to issue an executive order to replace with a friendlier judge.

Not at all. Rather, I recently discussed the issue about the constitution that people often like to pretend it 'has all the answers' - and deny the uncomfortable truth that the Supreme Court is often not 'basing their rulings on something clear in the constitution' as people like to claim when they agree with it, but having to 'make stuff up'.

This was just to share the shocking, IMO, find of how little the constitution defined the Supreme Court, in not even having any information on the Chief Justice other than one mention of one duty of the office that apparently should exist because it's mentioned - but not how it's selected or its duties. So we're kind of flying by the seat of our pants on a lot of that, just following tradition (which has worked so well with the filibuster), where I think most people would think the constitution says something about the topic.

So what if a president did want to change the chief justice to a different judge? You say there is 'no ability' to; well, there's no prohibition either. There are no 'rules'. So what would happen if a president announced he was doing it? On what grounds would anyone support or oppose him? There's no more direction in the constitution for the President to have named the chief justice in the first place than there is to change the person.

The only backlash seems it would be political for people to say they don't like it, but there are no clear punishments available, and some would presumably support it. It seems it would cause some chaos if it were to happen. There's been some chaos before, such as when Nixon went down the line firing starting with the Attorney General until he got someone (Robert Bork) who would fire the special prosecutor investigatinghim.

Anyway, the pount was just to use an example of how the constitution can not specify something so basic, much less clear answers on, say, same sex marriage - and that I think it's good for people to better understand how that works, when there's so much baseless claiming that 'well, MY position is based on actually following the constitution'.

I think it's interesting also about how that operates with the Chief Justice.

While we're at it, not everyone is aware how Supreme Court Justices don't even need to be layers, much less have judicial experience; for example, Earl Warren was named Chief Justice never having been a judge, and went on to be an especially influential (and IMO the best in a long time) Chief Justice.

 

[Agent11]

The chief justice serves until dead, impeached or he retires.

 

[Craig234]

The chief justice serves until dead, impeached or he retires.

Except that the constitution does not say that. We just choose to do it.

That's the interesting thing that an issue like that isn't settled, just tradition.

 

[Charles Kozierok]

Except that the constitution does not say that. We just choose to do it.

It's implied by the language, in particular the lack of mention of a term of service as is provided for other offices.

 

[ElFenix]

Especially for people who think they're 'strict constructionists':

What are the constitution's instructions on how the Chief Justice of the Supreme Court is selected?

Not 'how is it done', but say the process is challenged, how does the constitution answer?

Bonus question: what does it say about if a President wants to replace the Chief Justice with one of the Associate Justices? Say Obama wanted to replace Roberts with Kagan?

i think the answer you want is that the constitution isn't specific about it. we do it the way we do out of tradition as that was the way things were done at the King's Bench in Westminster in the 1780s (which had a Chief Justice and other judges as may have been appointed to serve for good behavior), which the supreme court copypastas. considering how much other constitutional law revolving around courts has to do with english legal practices in the 1780s (example: juries), you could probably make an argument that the constitution requires the president to nominate and the CJ to serve for good behavior, as that would be analogous to how the KB did it way back when (rather than, say, letting the judges pick amongst themselves). you might argue that because "Chief Justice" is specified somewhere, that it is a particular office which would be require nomination and confirmation.

 

[Craig234]

i think the answer you want is that the constitution isn't specific about it. we do it the way we do out of tradition as that was the way things were done at the King's Bench in Westminster in the 1780s (which had a Chief Justice and other judges as may have been appointed to serve for good behavior), which the supreme court copypastas. considering how much other constitutional law revolving around courts has to do with english legal practices in the 1780s (example: juries), you could probably make an argument that the constitution requires the president to nominate and the CJ to serve for good behavior, as that would be analogous to how the KB did it way back when (rather than, say, letting the judges pick amongst themselves). you might argue that because "Chief Justice" is specified somewhere, that it is a particular office which would be require nomination and confirmation.

Of course, the English practices were not binding on us, however much we might have used them for inspiration. (Along with things like the Iroquios (sp?) system of government).

The constitution is specific about most other senior positions - which positions in the administration need Senate confirmation (the rules for determing that), for Congressional leaders it says 'Congress shall have the power to make its own rules', but nothing about the Chief Justice, it's odd.

While the President saying who it will be is one option, why can't the court as an independant and co-equal branch decide itself, like Congress does?

Again I just find it very odd how the rules are not specified.

A bit of interesting trivia: before John Adams nominated Chief Justice Marshall to the court - the one who famously gave the court the right to strike down laws - he'd appointed John Jay, who was confirmed by the Senate - but turned it down, saying one reason was the position lacked prestige. I guess Marshall decided to change that.

 

[werepossum]

The Constitution spells out that the Chief Justice is a unique office in Article I Section 3 Clause 6. The Judiciary Act of 1789 fleshed out this requirement. All members of the federal judiciary are nominated by the President and confirmed by the Senate, and serve for life unless they are impeached or can no longer carry out their duties. Thus it seems crystal clear that the President has no authority to remove a Chief Justice. Neither can the associate justices; only the House has that authority, and then only if the Senate convicts.

And yeah, Marshall changed pretty much everything about SCOTUS.