Monday, September 05, 2005

Roberts as Chief

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?

After all, we have all been assuming that naming a "Chief" is separable from naming a "Justice." Everyone seems to agree that 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."

UPDATE: Marty Lederman has a good answer.

4 Comments:

Blogger Dylan said...

The back of my Con Law book has a list of all Supreme Court justices, tracked by their seat "number." It treats a promotion from associate to chief as the removal from that associates seat and replacement of the chief's slot. So Rehnquist, who held the (presumably historical) 8 spot moved to the 1 seat in 1986.

This is not, of course, a constitutional thing, but conceptually it makes sense.

12:26 PM  
Blogger majebek said...

Roberts as Chief? I agree that Scalia should be Chief but there is no way he would be given that chance. I would have preferred to see O'Connor fill the Chief spot and confirm Roberts as Associate. Renquist became Chief only after years of sitting as Associate. Towards the end, it has been written, that he cared more about protecting the sacredness of the Court than he did about his own personal convictions. Given that Roberts has not had the experience of sitting on the bench I can only imagine that his personal convictions will matter more.

3:00 PM  
Blogger David Sucher said...

Ms suspicion is that it will actually put Roberts at a disadvantage in pushing his own agenda with the other Justices, who, being quite human, will find it difficult not to be just a slight bit put off with being "led" by such very youthul novice, no matter how charming. Talk about herding cats!

5:48 PM  
Blogger nk said...

The Chief Justice is a different category than Associate Justice. It is not a question of anyone being replaced -- it is a question of a President having appointed and a Senate having confirmed one Chief Justice and eight Associate Justices. The link below (NOT a site I am associated with) explains it better than I can.
http://www.scotusblog.com/movabletype/archives/2005/09/is_a_new_nomina.html

8:30 AM  

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