How Should We Select a Chief Justice?
The following is by Professor David Stras of the University of Minnesota Law School. Professor Stras will occasionally provide commentary on the Court’s business and alert readers to significant academic developments regarding the Supreme Court.
A new article by Todd Pettys was just posted on SSRN entitled “Choosing a Chief Justice: Presidential Prerogative or a Job for the Court?” which is available here. In the article, he argues that the current method for selecting a Chief Justice—presidential appointment and senatorial advice and consent—is deeply flawed for two reasons. First, the tacit rationale for the practice was the close advisory relationship between the Chief Justice and the President, as illustrated by President Washington’s frequent consultation with Chief Justice Jay during the nation’s early years. In other words, executive appointment could be supported on the basis that the Chief Justice would become one of the President’s closest advisors. Although I find this part of the article less convincing, in part because the President also appoints all other Article III judges, though none have a close advisory relationship to the executive, it does have an interesting discussion about the history of the office of Chief Justice and some of the more esoteric duties entrusted to the Chief by statute (such as regent for the Smithsonian Institution and as trustee for the National Gallery of Art and Hirshhorn Museum and Sculpture Garden).
The article is far more persuasive on the second point—that a serious conflict would arise if the Chief Justice were required to preside over the trial of the President that appointed him. Professor Pettys persuasively argues that the Framers removed the Vice President from the presiding role in a trial involving the President because of the real conflict of interest that would occur if the presiding officer was eligible for the higher office occupied by the individual on trial. Although the conflict is not as stark for a Chief Justice appointed by the President, a conflict of interest nonetheless exists, which potentially supports a different method of appointment for the office.
Of course, essential to this entire line of argument is Professor Pettys’ observation that the Constitution is silent on the appointment process for the Chief Justice. Thus, he proposes that, once all nine vacancies on the Supreme Court are filled, the members of the Court should select the Chief Justice. As a policy matter, the Justices are in the best position to know whether one of their colleagues is collegial and possesses the leadership and administrative skills to serve as an effective Chief Justice. I found this article quite interesting, and although I did not agree with everything, it’s well worth a read. (Hat tip: Legal Theory Blog).
Given that the “deeply flawed” process has hit two out-of-the-park home runs in its last two at-bats, I would be inclined to go with the adage, “If it ain’t broke, don’t fix it.”
Comment by Kent Scheidegger — January 26, 2007 @ 10:35 am
And I be inclined to point out that the article argues for change based largely on a possible conflict of interest in the future.
And of course there is the fact that the majority of CJ’s were clearly less than “home runs”.
-Derek Anderson
Comment by Bluesman — January 26, 2007 @ 1:12 pm
It must have been a very quiet semester break in Minnesota. Imagine if Bush were impeached and Chief Justice Roberts had to preside over his trial. I can hear Roberts agonizing with his wife late into the night: “I cannot take the stress and pressure any more! Look what this man has meant to my life. He nominated me for a seat on the court, which would never cause me to be biased at his trial. But then, he elevated me to Chief Justice. Now, every time I rule or even think about the awesome responsibility of this task, I keep reminding myself, how can I be impartial over the fate of a man who bestowed upon me the job of Trustee for the National Gallery of Art and Hirshhorn Museum and Sculpture Garden? What do you think honey? Honey? ZZZZZZZZZZZZZZZZZZZZZZZZ.
Comment by Dennis Bedard — January 27, 2007 @ 4:04 pm
I think we now know what happens when law professors in Minnesota have too much time on their hands.
Comment by Marc Shepherd — January 27, 2007 @ 5:49 pm
I might add, however, that judges recuse themselves over much less than the scenario raised by Professor Pettys (of the University of Iowa). I thought his article interesting and provocative, primarily because I had never thought about the potential conflict of interest for a Chief Justice presiding over the trial of a President that appointed him.
After the post, I thought that one potential response to his argument is that the Chief Justice can recuse himself in such a situation, and then the the duty of presiding over the trial could fall to the most senior Associate Justice. Of course, that might violate the express textual command that the Chief Justice of the United States preside over the impeachment trial.
Comment by David Stras — January 27, 2007 @ 9:03 pm
Chief Justice Burger wrote the opinion that effectively ended Richard Nixon’s presidency. I don’t see that his presiding at a impeachment trial, if it had come to that, would have presented any greater conflict. Indeed, it might present less, as the Chief Justice at such a trial merely directs the procedure and does not participate in the decision.
Comment by Kent Scheidegger — January 27, 2007 @ 11:48 pm
Mr. Scheidegger opens the lid on an interesting issue. The Burger/Nixon relationship was the last time that a president and Chief Justice had any meaningful dialogue. Burger made regular visits to the White House to discuss political issues with Nixon. My recollection, although fuzzy, is that Burger had met with Nixon in 1971/1972 to discuss being a vice presidential candidate. For another almost comical and hard to believe instance of a supreme court justice interjecting himself in politics, one should read “A Well Paid Slave,” David Snyder’s recent scroll about Curt Flood’s lawsuit against baseball in 1970. Lyndon Johnson actually persuaded Arthur Goldberg to resign his seat on the court to become Secretary General of the UN with a promise to be the Democrats’ VP choice in 1968. Goldberg, in what was probably the dumbest move ever by a justice, actually believed it, quit, and became the umpteenth person with a MENSA IQ to have his ego massaged by LBJ only to be sorely disappointed when the chit became due. The point of this is that in this age it is difficult to imagine any justice strolling over to the White House to advise a president on pedestrian political matters or to resign a seat for a patronage job. There is simply no meaningful inerraction between these two branches of government.
Comment by Dennis Bedard — January 28, 2007 @ 8:26 am
Arthur Goldberg resigned for an even less juicy role — not Secretary General, but merely UN Ambassador.
Johnson replaced Goldberg with Fortas, and then tried to promote Fortas to Chief Justice. When Fortas went down in flames, Nixon got to fill two seats that could have been held by Nixon/Johnson appointees for many more years to come. In effect, Johnson threw away two seats.
Comment by Marc Shepherd — January 29, 2007 @ 8:25 am
The article is extremely silly, as most of the comments have noted. I did want to respond to Kent’s comment, ‘Given that the “deeply flawed” process has hit two out-of-the-park home runs in its last two at-bats, I would be inclined to go with the adage, “If it ain’t broke, don’t fix it.’
Roberts has served only one full term, so it’s a little early to declare him an out-of-the-park home run, unless the criterion is that all conservatives are home runs by definition.
Rehnquist was dependably conservative, but his tenure produced a lot of fractured opinions, a drawback a guy named Roberts has noted with some disapproval. It’s hard to see how both Roberts and Rehnquist could be home runs, if Roberts is now saying he wants to take a very different approach.
I think everyone agrees that Burger was mediocre, and people’s views of Earl Warren tend to be determined more by ideology than competence.
Comment by Marc Shepherd — January 29, 2007 @ 8:31 am
I think Mr. Scheidegger makes a very strong point about Burger refusing to recuse himself in the Nixon case, although I will note that Justice Rehnquist, who was also appointed by Nixon, did recuse himself from consideration of that case. Although I found other aspects of the article unconvincing, I did find the conflict point persuasive until Mr. Scheidegger’s post, who has convinced me otherwise. There does seem to be something a bit unseemly, however, about a Chief Justice presiding over the trial of the man who appointed him.
By the way, I hope to post another article by the end of the week.
Comment by David Stras — January 29, 2007 @ 10:35 am
Marc’s point that it is too early to evaluate Chief Justice Roberts is well taken. It would have been more precise to say that, given the trajectory of the ball shortly after leaving the bat, it appears headed out of the park.
However, the fact that Rehnquist and Roberts are different does not mean they cannot both be excellent chiefs.
Comment by Kent Scheidegger — January 29, 2007 @ 1:14 pm
There’s an obvious difference there: Rehnquist wasn’t just appointed by Nixon, unlike Burger he had worked in the Nixon administration.
I guess the part I don’t understand is why we would think a Chief Justice presiding over the impeachment trial of the President who appointed them would raise any more conflict of interest issues than any Justice appointed by any President ruling in a case that affected that President’s authority. For example, had Roberts not had to recuse from Hamdan for other reasons, should he have recused anyway, lest he be accused of conflict of interest in granting (or withholding) power from the man who appointed him? Moreover, I was under the impression that in the Senate — including in impeachment trials — the presiding officer really had very little power, and virtually all power of significance would be wielded by the Senate, not the Chief Justice - what power would the Chief have that created a conflict of interest?
Comment by Simon Dodd — January 29, 2007 @ 2:33 pm
Per Riddick:
“the Presiding Officer … may rule on all questions of evidence including, but not limited to, questions of relevancy, materiality, and reundancy of evidence and incidental questions, which ruling shall stand as the judgment of the Senate, unless some member of the Senate shall ask that a formal vote be taken thereon, in which case it shall be submitted to the Senate for decision without debate; or [the presiding officer] may at his option, in the first instance, submit any such question to a vote of the members of the Senate.”
How much potential can there be for abuse or whatnot when any individual Senator can force a vote on a ruling? Can “a serious conflict … arise if the Chief Justice were required to preside over the trial of the President that appointed him” if the powers of the Chief Justice to affect the outcome of the trial are actually quite limited, and subject to the discretion of the Senate?
Comment by Simon Dodd — January 29, 2007 @ 2:45 pm
There’s an obvious difference there: Rehnquist wasn’t just appointed by Nixon, unlike Burger he had worked in the Nixon administration.
That is true, although there is no evidence that Rehnquist worked on anything remotely related to the Watergate tapes. Did Rehnquist recuse himself because he worked for the administration or because he was appointed by Nixon? Without knowing why a Justice recuses, it is impossible to know his true motivation, but I would guess that it was some combination of both factors.
As I said, I am now ultimately convinced by Kent’s point, but Pettys does make a strong argument that the presiding officer plays an important, and in the case of Chief Justice Chase, even a critical role in the ultimate outcome of the case. It is the very reason why the Framers rejected having the Vice President serve in his usual role of President of the Senate. Indeed, the Senate did not overrule a single ruling by Chief Justice Rehnquist during the impeachment trial of Bill Clinton. Moreover, it is the appearance of impropriety (in addition to actual conflict) that counts under the federal recusal statutes.
Comment by David Stras — January 29, 2007 @ 3:06 pm
Any time an author writes a law review article challenging a practice that has been in place since 1789, he knows that he’s swimming upstream, to put it mildly. Will the article lead to an immediate change in the practice? Certainly not. One might at least want to consider the arguments, however, before dismissing them out of hand.
For those who haven’t read the article, let me pose some of the questions that got me thinking about the way in which we choose our Chief Justice—while all of the answers might be obvious to others, they certainly were not obvious to me.
Is it at all striking that a strong plurality of states allow their supreme courts’ members to choose their own leader, rather than letting other branches of government choose that leader for them? Is it noteworthy that only a small number of states still follow the federal model?
If the President no longer relies on the Chief Justice for advice, what is the rationale for letting the President (with the Senate’s help) choose the Court’s leader?
Even though Chief Justice Burger did the “right thing” in the Nixon case when deliberating with eight of his colleagues, would the country really have been well served by placing the man who worked so hard to win Nixon’s favor in charge of presiding over Nixon’s impeachment trial?
With respect to those candidates for the chief’s job who already hold seats on the Court, what is the rationale for forcing those candidates to go through a second round of confirmation proceedings? Are we at all concerned about the fact that, when evaluating an associate justice for promotion, the Senate will use it as an opportunity to conduct a mid-career assessment of that justice’s legal opinions for the Court?
What reason is there to think that the sitting justices aren’t in the best position to choose their own leader? Chief Justice Roberts might very well prove to be an “out of the park” hit—I have every reason to believe that he will be. But we’ve also had some chief justices who were decidedly not up to the task. Does our apparent success the last time out really convince everyone that the current selection process is ideal?
Others might well disagree but, from where I sit, the answers to those questions are not obvious.
Comment by Todd Pettys — January 29, 2007 @ 3:13 pm
I don’t think so - many states do many things that I think are bad models that should not be followed at the federal level. Is it an argument against the existing appointment and tenure system that in many (perhaps most, although I’d have to check that) states, judges have to go before the electorate? IMO, the issue isn’t whether the states have followed a different model, the issue is whether there is sufficient defect with the existing system to justify leaving the calm lagoon of a model that has worked perfectly well for over two centuries for the stormy waters of the unknown.
Comment by Simon Dodd — January 29, 2007 @ 3:57 pm
If the President no longer relies on the Chief Justice for advice, what is the rationale for letting the President (with the Senate’s help) choose the Court’s leader?
Might it be simply that this is one of the few ways in which the framers could check the power of the judiciary without worrying too much about compromising their independence? They’re not elected, they have life tenure, their salaries can’t be reduced, etc.
Or might it be that there is some other basis for a general aversion to the judiciary branch electing its own leaders? The chief judgeships on the federal appellate courts are set by statute too (28 U.S.C. § 45). That makes it less likely that the federal judiciary will experience this sort of thing: http://www.record-eagle.com/2007/jan/08dissent.pdf (link to MI Supreme Court Justice’s “Dissent to the Election of Chief Justice Clifford Taylor as Chief Justice”)
-Bill Burgess
Comment by B. Burgess — January 29, 2007 @ 4:38 pm
“Is it an argument against the existing appointment and tenure system that in many (perhaps most, although I’d have to check that) states, judges have to go before the electorate?”
Yes, actually, it is. In 1787, the Framers underestimated how dangerous the judicial branch could be. Life tenure protects judicial independence at the price of protecting judicial usurpation. (At some point in history, virtually everyone would agree, the U.S. Supreme Court has usurped to itself decisions that properly belong to the democratic process.) Most states have concluded the price is too high. There is no perfect system balancing the two considerations, but some states come considerably closer to optimum than the federal system.
Comment by Kent Scheidegger — January 29, 2007 @ 6:06 pm
Hey, for recusal issues, this CJ contretemps is nothing compared to being judged by a jury of 100, all of whom are intensely jealous of you and think, but for the grace of God, they should have your job!
Comment by Dennis Bedard — January 29, 2007 @ 9:26 pm
Todd Pettys is absolutely right that having the President choose the Chief Justice is a bad idea. The fact that it can be changed without a constitutional amendment makes it a change worth considering.
The conflict of interest scenario in an impeachment of a President is hardly the most important reason for this, however.
The real problem is not that the President is less likely to select a good Chief Justice than the members of the court. The real problem is that the President can make the decision just once.
Leadership is a burdensome thing. Few cabinet appointees hold their posts for an entire Presidential administration. Yet, the Chief Justice is the administrative head of the judicial branch which is as large as any cabinet department.
The man who may be eager and competent at 55 years old when he is appointed, may be weary, embattled and stuggling to manage his ordinary judicial duties at 75. While a good Chief Justice may marginally improve the performance of the court, a bad Chief Justice has the ability to royally screw up the entire judicial branch.
Fellow judges can monitor the Chief’s performance and allow him to step down if his competence wanes. The Presidential appointment system doesn’t allow for that.
Comment by Andrew Oh-Willeke — January 30, 2007 @ 4:33 pm