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).