The Chief Justice of the United States: Responsibilities of the Office and Process for Appointment
Released: 2005-09-23T00:00:00

Introduction

The appointment of the Chief Justice of the United States is an infrequent event of majorsignificance in American politics. The appointment of each Justice to the Supreme Court issignificant because of the enormous judicial power that the Court exercises as the highest appellatecourt in the federal judiciary. The Chief Justice, like each of the Court's other eight Justices, castsone vote when the Court rules on cases. However, the Chief Justice also exercises a leadership roleand wields unique influence, both within the Court itself and in the federal judiciary as a whole. Chief Justice appointments occur infrequently, with only 16 individuals having served in thatposition since 1789 -- an average tenure of 13Â½ years per Chief Justice. (1)

On September 3, 2005, Chief Justice William H. Rehnquist died, after having served almost19 years as Chief Justice. (2) He had been diagnosed with cancer in October 2004 and, although in ill health since then, hadmanaged to lead the Court through its last term, which ended in late June 2005. His death cameabout two months after Associate Justice Sandra Day O'Connor had announced her intention to retirefrom the Court, (3) and onlya few days before the scheduled start of confirmation hearings, on September 6, 2005, for hernominated successor, John G. Roberts, Jr., a U.S. appellate court judge. On September 6, PresidentGeorge W. Bush withdrew the Roberts nomination for the O'Connor seat and instead nominatedJudge Roberts for Chief Justice. (4) At age 50, Judge Roberts, if confirmed by the Senate, wouldbecome the youngest Chief Justice at time of confirmation in more than 200 years. (5) Out of respect for the lateChief Justice, whose funeral was held on September 7, the Senate Judiciary committee postponedthe start of its hearings on Judge Roberts' nomination to be Chief Justice until September 12. Following four days of hearings on the nomination, the Judiciary Committee on September 22approved Judge Roberts to be Chief Justice by a 13-5 vote. That action sent the nomination to thefull Senate, which is expected to vote on whether to confirm Judge Roberts on September 29.

Any Supreme Court nomination must be confirmed by the U.S. Senate, which, in recentCongresses, has been embroiled in controversies over various of the President's nominations to thelower federal courts. At times, Senate Democrats have accused President Bush of using hisnominating power to appoint to the courts persons having controversial ideological agendas, and ofmaking judicial appointments during Senate recesses in order to bypass the need for Senateconfirmation. (6) SenateRepublicans, in turn, have accused Senate Democrats of using their own ideological "litmus tests"to oppose certain judicial nominees and of making improper use of filibusters (extended debate asa delaying tactic) on the Senate floor to block Senate votes on circuit court nominees whom theyoppose. (7)

Against this backdrop, a Supreme Court vacancy can be seen by Senators of both parties, atleast to some extent, in an ideological context. Many highly controversial decisions of the Court inrecent years have been closely decided, by 5-4 votes, appearing to underscore a longstandingphilosophical or ideological divide in the Court between its more "liberal" and "conservative"members. Depending on their judicial philosophy, future appointees to the Court, Senatorsrecognize, could have a potentially decisive impact on the Court's ideological balance and, as well,on whether past rulings of the Court will be upheld, modified, or overturned. (8)

All other things being equal, the appointment of a Chief Justice, owing to the responsibilitiesof the office and its symbolic importance, is foremost among the appointments that a Presidentmakes to the Supreme Court. Under any circumstances, it will command the attention of Congress,especially the Senate, which votes on whether to confirm judicial nominations. Even more attentionis expected in the current political environment, in light of the controversy that has recentlysurrounded the judicial appointment process and the importance that the President and Senators ofboth parties have attached to upcoming Supreme Court appointments.

Other factors, moreover, can further complicate the appointment of a Chief Justice. Theprocess, for instance, might become more contentious if the appointment of a new Chief Justice wereseen as affecting the ideological balance of the Court, and thus galvanize opposition from Senatorsunhappy with the implications of the appointment. The process also might become morecomplicated if another Supreme Court appointment needs to be made at or around the same time asthe Chief Justice appointment. This situation can arise, for instance, if a President nominates anAssociate Justice to be Chief Justice, or if (as happened recently) an Associate Justice stepped downat about the same time as a Chief Justice vacancy were created -- in either case, creating an AssociateJustice vacancy for the President to fill.

This report is intended to help show what is unique about the office and to shed light on theprocess by which a Chief Justice is appointed. Hence, an initial section reviews the vast range ofduties and responsibilities of the Chief Justice and the qualifications considered necessary for oneto perform effectively in that office. A second section then examines the Supreme Courtappointment process, focusing on the appointment of Chief Justices. At the end of this report, atable lists the names of all persons nominated for Chief Justice, from 1789 to the present, includingtheir nomination dates and, if confirmed by the Senate, the dates of their confirmation, judicial oath,and end of service, as well as their ages at time of appointment and upon termination of service.

For a more detailed review of each stage in the Supreme Court appointment process, as itapplies to Associate Justice as well as Chief Justice nominees, see CRS Report RL31989 , SupremeCourt Appointment Process: Roles of the President, Judiciary Committee, and Senate .

Roles, Responsibilities, and Qualifications of the Chief Justice

Roles and Responsibilities

Only one of the Chief Justice's responsibilities is specified in the Constitution. Article I,Section 3, Clause 6 states that the Chief Justice shall serve as the presiding officer of the Senateduring an impeachment trial of the President. Otherwise the Constitution does not mention the ChiefJustice. The Judiciary Act of 1789, one of the first laws enacted by the first Congress, stipulatedthat the Supreme Court would consist of a Chief Justice and five Associate Justices. (9) In the two centuries thatfollowed, Congress enacted legislation authorizing certain powers to the Chief Justice, and otherduties have evolved over time through custom and practice.

The Chief Justice is the Court's most highly visible and identifiable figure -- by virtue of theposition's prominence and prestige, and the powers it has acquired by statute or through custom. TheChief Justice has been called the "first among equals" on the nine-member Court. Each Chief Justicebrings an individual style of leadership that influences the way the Court operates, deliberates, andconducts its work. Moreover, the Chief Justice has considerable influence on the interactions thatoccur among the Justices. Many Chief Justices have left an indelible mark on the Court throughtheir vision and leadership. Some, in retrospect, are admired for their constitutional scholarship,others are noted for their acumen in working effectively with the other Justices and the legislativeand executive branches, and still others are recognized for administrative and organizationalskills. (10)

The Chief Justice's most prominent role is that of presiding officer of the Court. In thiscapacity, the Chief Justice:

presides at the private conference during which the Court decides which lowercourt decisions to accept from the large number received on appeal;

presides over the public sessions, or hearings of cases, that come before theCourt;

chairs the private conference at which cases are discussed among the ninemembers of the Court and eventually decided by a vote of the Justices; and

assigns, when in the majority, the writing of the Court's opinion on the caseeither to himself or to one of the Associate Justices. (11)

The Chief Justice is also manager of the Supreme Court's building and the overall operationsof the Court. The administrative duties attendant to this role have increased over the years,commensurate with the growth of the nation, the sheer volume of cases presented to the Court,technological advances in court operations, and current security requirements. (12) Managerial tasks includeapproving the appointment of some court employees and the rules of the Supreme Court Library.

The Chief Justice, too, is the head of the federal judicial branch of government. In thiscapacity, key statutory duties of the Chief Justice include chairmanship of the Judicial Conferenceof the United States, (13) overall supervision of the Administrative Office of the United States Courts, (14) and chairmanship of theBoard of the Federal Judicial Center. (15) Other duties include appointing two members of the Judiciaryto the Commission on Executive, Legislative and Judicial Salaries; reporting to Congress on changesin the Federal Rules of Criminal Procedure prescribed by the Supreme Court; (16) and, under the ForeignIntelligence Surveillance Act, appointing 11 federal judges to the Foreign Intelligence SurveillanceCourt. (17)

As the head of the judicial branch, the Chief Justice is its spokesman and advocate. In thiscapacity, the late Chief Justice, William H. Rehnquist, took a leadership role in pressing for increasesin judicial salaries and in funding for judicial branch operations. In his 2004 Year-End Report onthe Federal Judiciary , for instance, Chief Justice Rehnquist underscored his concern about the"funding crisis currently affecting the federal judiciary." (18) The tradition of the Chief Justice writing an annual report on thefederal judiciary was begun by Chief Justice Warren E. Burger in 1970. (19)

The Chief Justice has statutory authority and responsibilities related to the circuit courts. Bythe order of the Supreme Court, the Chief Justice and the Associate Justices are allotted as circuitjustices among the circuits. The Chief Justice is authorized to make such allotments when the Courtis in recess. (20) Also bystatute, the Chief Justice has authority to temporarily designate and assign " any circuit judge to actas a circuit judge in another circuit upon request by the chief judge or circuit

justice of such circuit." (21) Further, he may assign any retired Chief Justice of the UnitedStates or Associate Justice of the Supreme Court to perform judicial duties in any circuit, includingthose of a circuit justice, as the designee agrees to undertake. The Chief Justice is to maintain aroster of retired justices who are willing and able to undertake special duties. (22)

Also by statute, the Chief Justice has several extra-judicial responsibilities. These includemembership on the Board of Regents of the Smithsonian Institution, (23) the Board of Trustees ofthe National Gallery of Art, (24) and that of the Joseph H. Hirshhorn Museum and SculptureGarden. (25) Further, theChief Justice makes non-judicial appointments, such as those to the National Commission onReform of Federal Criminal Laws (26) and the National Historical Publications Commission. (27)

By tradition, the Chief Justice also performs a number of important ceremonial duties, suchas administering the oath of office to the President. (28) In the international arena, the Chief Justice has engaged injudicial exchanges with foreign governments to promote understanding between judicial institutionsand countries. (29)

Substitute leadership on the Court is provided for by federal statute whenever the ChiefJustice "is unable to perform the duties of the office or the office is vacant." In such an event, theChief Justice's "powers and duties shall devolve upon the associate justice next in precedence whois able to act, until such disability is removed or another Chief Justice is appointed and dulyqualified." (30)

The late Chief Justice Rehnquist, in remarks made at Duke University on April 13, 2002,described his views of his office's responsibilities, and the potential impact that an individual canmake while holding the office:

A President brings to office his entire cabinet, fromSecretary of State on down. But the Chief Justice brings to office no one but himself. He takes hisseat with eight Associate Justices who are there already, and who are in no way indebted to him. Byhistoric usage, he presides over the Court in open session, presides over the Court's conferences, andassigns the preparation of opinions in cases pending before the Court if he has voted with themajority. He also speaks on behalf of the federal judiciary in matters which pertain to it. But thisstructure obviously leaves great room for interplay among the members of the Court. Marshall andTaney were dominant members of the Courts on which they served as Chief Justice; Chase andVinson were not. Perhaps the best description of the office is to say that the Chief Justice has placedin his hands some of the tools which will enable him to be primus among the pares but his staturewill depend on how he uses them. (31) (italics added)

Qualifications for the Office

As noted, the office of Chief Justice requires that its occupant be able to perform in manydemanding roles -- as presiding officer of the Court, judge, constitutional scholar, statesman,consensus-builder, advocate, and administrator. Nevertheless, there is no formal list of qualificationsfor the job -- not even a requirement that a nominee be a lawyer, (32) although every Justice todate has been a lawyer.

In recent decades, discussions in the Senate of the professional qualifications of judicialnominees in general often have focused on three aspects of a nominee's background -- the nominee'sintegrity, professional competence, and judicial temperament. The breakdown of professionalqualifications into these aspects has mirrored the three-pronged standard long used by the AmericanBar Association's (ABA's) Standing Committee on Federal Judiciary in evaluating federal judicialnominees on behalf of Presidents and the Senate Judiciary Committee. (33) In a booklet describingits evaluating role, (34) the ABA committee explains what its three standards measure. The criterion of professionalcompetence, the committee writes, "encompasses such qualities as intellectual capacity, judgment,writing and analytical ability, knowledge of the law, and breadth of professional experience." (35)

As for nominees to the Supreme Court, the ABA committee comments that "the same factorsconsidered with respect to the lower courts are relevant." In addition, however, the committeeexplains that its evaluation

is based on the premise that the Supreme Court requiresa person with exceptional professional qualifications. The significance, range and complexity of theissues considered by the Supreme Court, the importance of the underlying societal problems, theneed to mediate between tradition and change and the Supreme Court's extraordinarily heavy docketare among the factors that require a person of exceptional ability." (36)

Besides the above-mentioned qualities that would be desirable in Supreme Court Justices ingeneral, a number of additional intangible qualities as well would appear to be desirable, and evencritical, to bring to the Chief Justice position. These would include leadership, scholarship, andconsensus-building skills, as well as administrative abilities. Earlier experience on the Court mayalso be valuable, although, historically, such experience usually has not been critical in the selectionof a Chief Justice nominee. (37)

John P. Frank, in Marble Palace; the Supreme Court in American Life , has articulated theview that a Chief Justice

must get his real eminence not from the office but fromthe qualities he brings to it. He must possess the mysterious quality of leadership. In this respectthe outstanding Chief was [John] Marshall, who for 35 years presided over a Court largely populatedby Justices of an opposing political party. Moreover, his Court, because of the very newness of theConstitution it was expounding, dealt with some of the greatest questions of history. (38)

Former Chief Justice Charles Evans Hughes, in The Supreme Court of the United States ,wrote:

The Chief Justice as the head of the Court has anoutstanding position, but in a small body of able men with equal authority in the making ofdecisions, it is evident that his actual influence will depend on the strength of his character and thedemonstration of his ability in the intimate relations of the Judges.... Courage of conviction, soundlearning, familiarity with precedents, exact knowledge due to painstaking study of the cases underconsideration cannot fail to command that profound respect which is always yielded to intellectualpower conscientiously applied. (39)

A decade prior to being appointed an Associate Justice in 1939, Felix Frankfurter definedthe qualities that any member named to the Court should embody:

The most relevant things about an appointee are hisbreadth of vision, his imagination, his capacity for disinterested judgment, his power to discover andsuppress his prejudices.... Throughout its history, the Supreme Court has called for statesmanship-- the gifts of mind and character fit to rule nations. (40)

These attributes would appear to be especially important for a Chief Justice, as the leader ofthe Court.

Apart from the personal qualities of individuals under consideration for appointment to beChief Justice, external political factors may also play a part in determining whether these personsare a good "fit" for the appointment. Such factors would include the President's policy preferences,the Senate's party and ideological divisions, the composition of the current Court, and the candidates'chances for receiving Senate confirmation if nominated. The extent to which these factors caninfluence a President's selection of a nominee, as well as the Senate's decision on whether to confirm,are discussed in this report's next section. (41)

Process for Appointment of a Chief Justice

Background

Brief Description of the Appointment Process. The modern-day process for appointing a Chief Justice is the same as that for appointing AssociateJustices to the Court. (42) The need for a Supreme Court appointment arises when a vacancy occurs on the Court due to thedeath, retirement, or resignation of a Justice (or when a Justice announces the intention to retire orresign). At that point, it becomes the President's constitutional responsibility to select a successorto the vacating Justice. A Chief Justice appointment may be made only when there is, or isscheduled to be, a vacancy in the position of Chief Justice; the President may not use the occasionof an Associate Justice vacancy to appoint someone to replace a sitting Chief Justice.

Typically, candidates for the Supreme Court who are under serious consideration by thePresident will undergo a thorough investigation by the Administration into their private backgrounds,public record, and professional qualifications. In deciding whom to appoint, Presidents are free toreceive advice from whomever they choose. The President may, but is not required to, seek advicefrom Members of the Senate. Advice may also come from many other sources, including HouseMembers, officials in the President's administration, past and current Supreme Court Justices, partyleaders, interest groups, and others.

The appointment process officially begins when the President selects someone to fill theCourt vacancy. Except in rare cases of temporary recess appointments, the President will seek togive this person a lifetime appointment, which will require Senate consent. To obtain the Senate'sapproval, the President submits a written nomination of the person to the Senate. Usually on thesame day it is received by the Senate, the nomination is referred to the Committee on the Judiciary. Immediately upon the President's announcement of a nominee, the Judicial Committee initiates itsown intensive investigation into the nominee's background. When its investigation is completed,the Judiciary Committee holds hearings on the nomination, during which the nominee typicallyappears to testify and answer questions from Committee members. Then the committee votes onwhether to report the nomination to the Senate and, if so, whether to report it favorably, unfavorably,or without recommendation. A report with a negative recommendation or no recommendation, likea favorable report, permits the nomination to go forward, to be considered by Senate as a whole, butit also alerts the Senate that a substantial number of committee members have reservations about thenominee.

In the next stage, consideration of the nomination by the full Senate is scheduled by theSenate majority leader, usually in consultation with the minority leader. If there is extended debateby opponents of the nomination, commonly called a filibuster, debate may be brought to a close bya "cloture" vote of three-fifths of the full Senate membership. (If three-fifths of the Senate'sMembers do not vote in favor of cloture, Senators opposing the nomination, even if in the minority,may use extended debate and opposition to cloture to prevent a vote on confirmation from takingplace -- a scenario, however, which has played out that way only once in the past.) After Senatedebate on the nomination is concluded, the Senate votes to confirm or disapprove the nomination,with confirmation requiring a majority vote. If the Senate votes in the negative on whether toconfirm, the nomination is defeated, and a resolution of disapproval is forwarded to the President.

If the Senate votes to confirm the nomination, the secretary of the Senate transmits theresolution of confirmation to the White House, where the President signs a document, called acommission, officially appointing the individual to the Court. The commission, after being engravedat the Department of Justice with a date of appointment, and signed by the Attorney General, isdelivered to the appointee, along with the oath of office. After receiving the commission, theappointee is sworn into office, marking the completion of the appointment process. (43)

A President also may make a Supreme Court appointment without the Senate's consent, whenthe Senate is in recess. Such "recess appointments," however, are temporary, with their termsexpiring at the end of the Senate's next session. Historically, recess appointments to the SupremeCourt have been rare (the last three occurring in the 1950s) and sometimes have been controversial,in part because they bypassed the Senate and its confirmation role.

Past Chief Justice Appointments. Starting withJohn Jay of New York, who took his judicial oath of office on October 19, 1789, to the present day,16 individuals (all men) have served as Chief Justice of the United States. Fifteen of the 16 receivedlifetime appointments, after being nominated by the President and then confirmed by the Senate. One of the 15, prior to his nomination, had received a "recess appointment" from the President toserve for a limited term. A 16th individual served as Chief Justice only by temporary recessappointment, without subsequently being confirmed by the Senate for a lifetime appointment. Eleven of the 16 Chief Justices had never served on the Supreme Court before their appointments,while the other five had earlier served on the Court as Associate Justices. (44)

Four Chief Justice nominees failed to receive Senate confirmation. One of them was therecess appointee already mentioned, who, after first receiving appointment by the President duringa Senate recess, was subsequently nominated when the Senate was in session, only to be rejected bya Senate roll call vote. (45) The three others, in the face of significant opposition in the Senate, saw their nominations withdrawnby the President. (46)

Two other nominees to be Chief Justice were confirmed by the Senate, but declined theappointments. One of them was John Jay, who, after having already served as Chief Justice and thenas governor of New York, was nominated to be Chief Justice a second time. (47) The other was anAssociate Justice who was content to remain in that position after receiving Senate confirmation tobe Chief Justice. (48)

Constitutional Language on Supreme CourtAppointments. Under the Constitution, Justices on the Supreme Court receivelifetime appointments, holding office "during good Behaviour." (49) Such job security in thefederal government is conferred solely on Supreme Court Justices and judges in lower federal courtsestablished by Congress under Article III of the Constitution. (50) By constitutional design,lifetime appointments are intended to insure the independence of the Supreme Court (as well as thelower federal courts) from the President and Congress. (51) Once Justices are confirmed, a President has no power to removethem from office. A Justice may be removed by Congress, but only through the difficult and involvedprocess of impeachment. Only one Supreme Court Justice has ever been impeached (in an episodethat occurred in 1804), and he remained in office after being acquitted by the Senate. (52) Many Justices serve for20 to 30 years and sometimes are still on the Court decades after the President who nominated themhas left office.

The procedure for appointing a Justice to the Supreme Court is provided for in theConstitution of the United States in only a few words. The "Appointments Clause" in theConstitution (Article II, Section 2, Clause 2) states that the President "shall nominate, and by andwith the Advice and Consent of the Senate, shall appoint ... Judges of the supreme Court." (53) While the process ofappointing Justices has undergone some changes over two centuries, its most essential feature -- thesharing of power between the President and the Senate -- has remained unchanged: To receivelifetime appointment to the Court, one must first be formally selected ("nominated") by the Presidentand then approved ("confirmed") by the Senate.

The Creation of a Vacancy or Prospective Vacancy on theCourt. The need for a Chief Justice appointment arises when the position becomesvacant, due to death, retirement, or resignation, or when the Chief Justice announces the intentionto retire or resign. It then becomes the President's constitutional responsibility to select asuccessor. (54) Historically, Justices have announced their retirements or resignations in letters to the President. Inletters of this sort, outgoing Chief Justices have timed their departures in various ways -- effectiveimmediately, upon a specified future date, upon the qualification of a successor, or at the pleasureof the President. (55)

As noted above, a Supreme Court vacancy also could occur if a Justice were removed byCongress through the impeachment process, but no Justice has ever been removed from the Courtin this way. A vacancy could occur, as well, upon the expiration of the term of a Justice whoreceived a recess appointment from the President. However, the only recess-appointed SupremeCourt Justice who was not later confirmed by the Senate, Chief Justice John Rutledge in 1795,resigned before his term expired. (56)

A vacancy on the Court is not necessarily created if a Justice becomes permanently disabledfrom performing the duties of the office. The vacancy, in that instance, is created only when theJustice either steps down on his or her own volition or dies in office. When a permanently disabledJustice declines to retire, no law or Court rule provides for his or her removal. While statutoryprocedures exist for lower courts to certify the permanent disability of a colleague, (57) none exists for theSupreme Court. (58) Instead, the Court "relies on justices to determine when they are no longer fit to serve." (59) The President isempowered to appoint someone to take the place of a disabled Justice only when he or she, by deathor retirement, vacates the position.

President's Selection of a Nominee

Criteria for Selecting a Nominee. The precisecriteria used in selecting a Supreme Court nominee will vary from President to President. Twogeneral motivations, however, appear to underlie the choices of almost every President, whether theappointment is for Chief Justice or for an Associate Justice seat. One motivation is to have thenomination serve the President's political interests (in the partisan and electoral senses of the word"political," as well as in the public policy sense); the second is to demonstrate that a search wassuccessfully made for a nominee having the highest professional qualifications.

Virtually every President is presumed to take into account a wide range of politicalconsiderations when faced with the responsibility of filling a Supreme Court vacancy. For instance, most Presidents, it is assumed, will be inclined to select a nominee whose political or ideologicalviews appear compatible with their own. "Presidents are, for the most part, results-oriented. Thismeans that they want justices on the Court who will vote to decide cases consistent with thepresident's policy preferences." (60) The President also may consider whether a prospectivenomination will be pleasing to the constituencies upon whom he especially relies for politicalsupport. For political or other reasons, such nominee attributes as party affiliation, geographicorigin, ethnicity, religion, and gender may also be of particular importance to the President. (61) A President also mighttake into account whether the existing "balance" among the Court's members (in a political party,ideological, demographic, or other sense) should be altered. Another consideration will be theprospects for a potential nominee receiving Senate confirmation. Even if a controversial nomineeis believed to be confirmable, an assessment must be made as to whether the benefits of confirmationwill be worth the costs of the political battle to be waged. (62)

Most Presidents also want their Supreme Court nominees to have unquestionably outstandinglegal qualifications. Presidents look for a high degree of merit in their nominees not only inrecognition of the demanding nature of the work that awaits someone appointed to the Court, butalso because of the public's expectations that a Supreme Court nominee be highly qualified. (63) With such expectationsof excellence, Presidents often present their nominees as the best person, or among the best persons,available. (64)

Closely related to the expectation that a Supreme Court nominee have excellent professionalqualifications are the ideals of integrity and impartiality in a nominee. Most Presidents presumablywill be aware of the historical expectation, dating back to Alexander Hamilton's pronouncements inthe Federalist Papers , that a Justice be a person of unquestioned integrity who is able to approachcases and controversies impartially, without personal prejudice. (65)

A President, however, may have additional concerns when the Supreme Court vacancy to befilled is that of the Chief Justice. Besides requiring that a candidate be politically acceptable, haveexcellent legal qualifications, and enjoy a reputation for integrity, a President might be concernedthat his nominee have proven leadership qualities necessary to effectively perform the tasks specificto the position of Chief Justice. Such qualities, in the President's view, could include administrativeand human relations skills, with the latter especially important in fostering collegiality among theCourt's members. The President also might look for distinction or eminence in a Chief Justicenominee sufficient to command the respect of the Court's other Justices, as well as further publicrespect for the Court. A President, too, might be concerned with the age of the Chief Justicenominee, requiring, for instance, that the nominee be at least of a certain age (to insure an adequatedegree of maturity and experience relative to the other Justices) but not above a certain age (to allowfor the likely ability to serve as a leader on the Court for a substantial number of years).

The situation faced by President Dwight D. Eisenhower in 1953 is illustrative of the widerange of criteria a President might apply when deciding whom to appoint to fill a Chief Justicevacancy. On September 8, 1953, Chief Justice Fred M. Vinson died unexpectedly. Within days, thePresident, according to one news analysis, was being "urged by prominent members of his party toapply all sorts of different tests -- political, geographical, personal, philosophical" -- in deciding ona successor to Vinson. A major geographical consideration, which was said to favor the appointmentof Earl Warren, governor of California, was that among the Court's eight remaining members therewere "no representatives from the West, and of the fifty-six appointments to the Court since thebeginning of the Civil War, only two [had] been from California." (66)

However, another factor, age, was said to favor former New York governor Thomas E.Dewey, who, at 51, was 11 years younger than Governor Warren. The reasoning urged upon thePresident by Dewey supporters was that "all other things being equal, the authority of a Chief Justicetends to increase with the duration of his service on the court." Hence, a younger-appointed ChiefJustice might have more time "for his personality and character to leave a strong imprint on [the]Court's decisions" and to "develop strong lines of allegiance among the other justices." (67)

The news analysis noted that both Governors Dewey and Warren

have distinguished legal and administrative records;both have impressive traits of character; both have strong personal and political claims on thePresident, but, in the last analysis, the question is: What test will President Eisenhower apply whenhe puts his mind to this momentous decision? (68)

Ultimately, the President appointed Governor Warren. President Eisenhower and his closestpolitical advisers were agreed "that Warren's experience, leadership qualities, and administrativeexpertise constituted precisely the kind of medicine that the badly faction-rent Vinson Court needed." Moreover, they were "convinced that here was ... a bona fide 'middle-of-the-road' or 'moderate'Republican." (69)

In his memoirs, President Eisenhower noted that, from the beginning of his administrationin 1953, he wanted the federal judges he selected to "command the respect, confidence, and prideof the population." (70) To that end, he set the following qualification standards for each judicial appointee:

" ... character and ability would be the first qualifications toseek";

Approval of the American Bar Association's Committee on Federal Judiciaryand "the respect of the community in which he lived";

A "thorough investigation of the prospective appointee's reputation and ofevery pertinent detail of his life" by the Federal Bureau of Investigation;

An upper age limit for initial appointment of 62 ("allowing a margin of a yearor so if other qualifications were unusually impressive");

"General health";

"Solid common sense," which would "exclude ... candidates known to holdextreme legal or philosophic views." (71)

As to Supreme Court appointments, Eisenhower recounted, another consideration was thepast party affiliations of the Court's members. In 1953, before the death of Chief Justice Vinson,"eight of the nine members of the Court had been classed as Democrats before joining the Court andonly one -- Associate Justice Harold Burton -- as a Republican. Naturally for the good of thecountry, I hoped eventually to achieve a better balance in this regard." However, he added, "I hadno intention of selecting a chief justice merely on such a basis. My goal was a United StatesSupreme Court worthy of the high esteem of the American people." (72)

For the office of Chief Justice, Eisenhower recalled, additional factors had to be considered:

A chief justice, I felt, should in addition to meeting allthe criteria I had established for the selection of other judges, be a man of national stature, who hadsuch recognized administrative ability as to promise an efficient conduct of the affairs of the Courtand who could be expected to provide a leadership that would be favorably received by all of thecourts of the land. (73)

Of various candidates for Chief Justice that immediately came to mind, the former Presidentrecalled, most were automatically eliminated either because of advanced age or a record of unsoundhealth. These considerations, he noted, ruled out a number of members of the Court for elevationto Chief Justice, while two other Justices "represented what I thought were extreme views in mattersthat could be expected to come before the Court for decision." (74)

Early in his Administration, but after the appointment of Earl Warren as Chief Justice,President Eisenhower added another criterion to be applied specifically to the selection of SupremeCourt Justices:

I told the Attorney General that I would not thereafterappoint anyone who had not served on a lower federal court or on a state supreme court. My thoughtwas that this criterion would insure that there would then be available to us a record of the decisionsfor which the prospective appointee had been responsible. These would provide an inkling of hisphilosophy. (75)

In the remainder of his Administration, President Eisenhower made four additional Supreme Courtappointments. Unlike Governor Warren, who had no prior judicial experience, Eisenhower's foursubsequent appointees to the Court all had prior judicial service (three in the federal judiciary andone on a state supreme court). (76)

The Role of Senate Advice. Historically,Presidents have varied in the degree to which they have sought or used advice from Senators inselecting Supreme Court nominees. It is a common, though not universal, practice for Presidents,as a matter of courtesy, to consult with Senate party leaders as well as with members of the SenateJudiciary Committee before choosing a nominee. (77) Senators who candidly inform a President of their objections toa prospective nominee may help in identifying shortcomings in that candidate or the possibility ofa confirmation battle in the Senate, which the President might want to avoid. Conversely, input fromthe Senate might draw new Supreme Court candidates to the President's attention, or provideadditional reasons to nominate a person who already is on the President's list of prospectivenominees. (78)

As a rule, Presidents are also careful to consult with a candidate's home-state Senators,especially if they are of the same political party as the President. The need for such care is due tothe longstanding custom of "senatorial courtesy," whereby Senators, in the interests of collegiality,are inclined, though not bound, to support a Senate colleague who opposes a presidential nomineefrom that Member's state. While usually invoked by home-state Senators to block lower federal courtnominees whom they find unacceptable, the custom of "senatorial courtesy" has sometimes alsoplayed a part in the defeat of Supreme Court nominations. (79)

Sometimes, however, a President may deliberately limit the role performed by Senate advicein the selection of a Supreme Court nominee. In 1969, for instance, President Richard M. Nixonnoted that in his selection of Warren E. Burger to be Chief Justice, he had not received approvalfrom the Senators of the state from which Burger had originally come (Minnesota) or the state inwhich he then resided (Virginia). "There were no political clearances in this case," the Presidentdeclared, and there will be none for any judges to the Supreme Court that I appoint." (80) Further, the Presidentstated that he told "all the Members of the Senate and the House, Democrat and Republican," tosubmit their recommendations for a Chief Justice nominee not to him directly, but through AttorneyGeneral John Mitchell. (In turn, the Attorney General would submit to the President "the case foreach man," with the President then making the decision.) President Nixon explained that he "did notwant to become personally involved in the contest, the very lively contest among several verywell-qualified people for this position." (81)

Constitutional scholars have differed as to how much importance the framers of theConstitution attached to the word "advice" in the phrase "advice and consent." The framers, somehave maintained, contemplated the Senate performing an advisory, or recommending, role to thePresident prior to his selection of a nominee, in addition to a confirming role afterwards. (82) Others, by contrast, haveinsisted that the Senate's "advice and consent" role was meant to be strictly that of determining, afterthe President's selection had been made, whether to approve the President's choice. (83)

Bridging the opposing schools of thought just noted, another scholar has asserted that the"more sensible reading of the term 'advice' is that it means that the Senate is constitutionally entitledto give advice to a president on whom as well as what kinds of persons he should nominate to certainposts, but this advice is not binding." (84) More recently, a similar view was expressed by the chairmanof the Senate Judiciary Committee, Arlen Specter (R-PA), regarding the role of Senate advice onSupreme Court appointments. At a February 24, 2005, news conference, Senator Specter, inresponse to a question, stated that for a President

taking advice is not too hard as long as you get to makethe final decision. And the Constitution doesn't say the President should do more than take advice. But the Constitution does say that there should be advice from the Senate. (85)

Selecting from Within or Outside the Court. ThePresident may select a Chief Justice nominee from within -- i.e., from among the Court's AssociateJustices -- or from outside the Court. Each option may present the President with differentconsiderations, attractions and drawbacks.

Choosing a Sitting Associate Justice To Be ChiefJustice. If the President's choice to be Chief Justice is a sitting AssociateJustice, the latter must be nominated and confirmed again to the Court -- this time to the position ofChief Justice. The appointment of an Associate Justice to be Chief Justice is often referred to as an"elevation." (86) ThePresident is free to select any one of the Associate Justices to be Chief Justice, without regard toseniority. In the past, Presidents have sought to elevate a sitting Associate Justice to be Chief Justiceon five occasions, and were successful on three of those occasions. (87)

Appointment of an Associate Justice to be Chief Justice, if successful, creates a vacancy inthe Associate Justice position. Selecting a Chief Justice nominee from within the Court thus affordsthe President the opportunity, in conjunction with the Chief Justice appointment, to make a secondSupreme Court appointment, to fill the vacancy created by the Associate Justice's elevation.

It has been suggested that selecting a Chief Justice from within the Court, and thereforebeing able to make two Court appointments, might appeal to a President if he is concerned withmaking the Court more in accord with his own values or vision for the Court. (88) Instead of selecting aChief Justice nominee from outside the Court, and having only one appointment opportunity, aPresident, taking the Associate Justice option, could potentially, through carefully screening ofnominee candidates, name two persons to the Court with views and values similar to his own. Moreover, the Associate Justice vacancy could be regarded as an opportunity to nominate a relativelyyoung person to the Court, whose influence might be felt on the Court for years -- and who himselfor herself could, at some later point, be considered by a President for appointment to Chief Justice.

The two-appointment option, however, might pose political pose risks for a President,depending on the circumstances. Two nominations, for instance, might lead to two confirmationbattles in the Senate, generating more conflict or controversy in Congress's upper chamber than thePresident would care to contend with. One Supreme Court appointment, even of a relativelycontroversial nominee, might not provoke widespread opposition in the Senate, if the appointmentwere not, by itself, seen to portend a significant change in the ideological "balance" of the Court'smembership. By contrast, two Court appointments, made at the same time, might, if balance on theCourt were seen to be at stake, galvanize the President's political opponents in the Senate to opposeeither or both nominees.

When nominating someone from within the Court to be Chief Justice, the President does nothave to wait for the Chief Justice nomination to be confirmed before nominating a successor to theAssociate Justice being elevated. The Associate Justice nomination is made with the understanding that, before its new appointee can take office, the Associate Justice position must become vacant. This vacancy occurs only when the Chief Justice nominee steps down as Associate Justice, whichhe or she presumably will do only after receiving Senate confirmation to be Chief Justice. (89)

Choosing Someone Outside the Court To Be ChiefJustice. If the President chooses someone from outside of the Court to beChief Justice, there will be only one vacancy to fill and, therefore, only one nomination to make. Thirteen of the Court's past Chief Justices (including in this count the first Chief Justice, John Jay)were selected as nominees from outside the Court, although two of them had been Associate Justicesprior to the time that they were nominated to be Chief Justice. (90)

A single Chief Justice nomination from outside the Court might seem the more desirableoption to a President if he sees no clear potential leader or unifier among the Court's currentAssociate Justices. A President particularly might be reluctant to choose a Chief Justice nomineefrom among Associate Justices who are highly polarized or antagonistic to each other, as such anappointment might only worsen divisiveness within the Court. (91)

In 1969, when explaining his choice of Warren E. Burger, a circuit court of appeals judge,to be Chief Justice, President Richard M. Nixon noted that the option of selecting a nominee fromwithin the Court had been considered by him on at least one occasion. The idea was raised,President Nixon said, by Associate Justice Potter Stewart, who, a few weeks earlier, had visited himat the White House. During their meeting, Justice Stewart said that "he felt that it would not be inthe best interest of the Court to appoint a sitting judge on the Court to Chief Justice." The Justiceexplained, according to the President, that,

generally speaking, because of the special role that theChief Justice has to play as the leader of the Court, it would be very difficult to take a man from theCourt and put him above the others. He said it would be better to bring a man from the outsiderather than one from the Court. And with that he took himself out and asked me not to considerhim. (92)

A Chief Justice nomination from outside the Court also allows the White House toconcentrate its efforts to secure confirmation on one nomination, rather than on two. For the currentPresident, George W. Bush, one analyst has suggested that a single nomination strategy for ChiefJustice

would make a tug of war between Mr. Bush and SenateDemocrats more stark and more easily understood by the public. A single clash also could reducethe amount of bad blood generated and time consumed in the Senate, the chamber that is expectedto take the lead on the President's Social Security proposal. (93)

Recess Appointments to the Court. On 12occasions in our nation's history (most of them in the nineteenth century), Presidents have madetemporary appointments to the Supreme Court without submitting nominations to the Senate. (94) These occurred whenPresidents exercised their power under the Constitution to make "recess appointments" when theSenate was not in session. (95) Historically, when recesses between sessions of the Senate weremuch longer than they are today, "recess appointments" served the purpose of averting longvacancies on the Court when the Senate was unavailable to confirm a President's appointees. However, the terms of these "recess appointments" were limited, expiring at the end of the nextsession of Congress (unlike the lifetime appointments Court appointees receive when nominated andthen confirmed by the Senate). Despite the temporary nature of these appointments, every personappointed to the Court during a recess of the Senate, except one, ultimately received a lifetimeappointment after being nominated by the President and confirmed by the Senate. (96)

The one Supreme Court Justice not to receive Senate confirmation after his recessappointment was a Chief Justice appointee -- John Rutledge of South Carolina. Rutledge was oneof President George Washington's first appointments to the Court as an Associate Justice in 1789. In February 1791, he resigned from that position, to become chief justice of South Carolina'ssupreme court. Rutledge then returned to the national scene when President Washington recessappointed him Chief Justice on July 1, 1795 (two days after nation's first Chief Justice, John Jay,stepped down upon being elected governor of New York). The appointment of Rutledge was madea few days after the 4th Congress began an adjournment that lasted more than five months. (97) On December 10, 1795,shortly after the Congress reconvened, President Washington nominated Rutledge for a lifetimeappointment as Chief Justice.

Rutledge, however, was a controversial nominee, in large part because of a statement he hadmade on July 16, 1795 (after his recess appointment, but before receiving his commission) that washighly critical of the Jay Treaty with Great Britain, which the Senate had ratified three weeksearlier. (98) On December15, less than a week after receiving the nomination, the Senate rejected Rutledge as Chief Justiceby a roll call vote of 10 in favor of confirmation and 14 opposed. (99) In a December 28, 1795letter to President Washington, from Charleston, South Carolina, Rutledge resigned his commissionas Chief Justice, citing considerations of fatigue and ill health. (100) A documentary historyof the early years of the Court said it was not clear if John Rutledge "knew that his nomination hadbeen rejected when he wrote this letter." (101) Had Rutledge chosen not to resign, his recess appointment,under the Constitution, would have allowed him to serve to the end of the 1st session of the 4thCongress -- June 1, 1796. (102)

Besides Rutledge in 1795, only one other Chief Justice received a recess appointment to thatposition -- Earl Warren in 1953. The position had become vacant on September 8, 1953, upon thedeath of Chief Justice Fred M. Vinson. At the time of Vinson's death, Congress was in recess(having adjourned on August 3, and was not scheduled to reconvene until the start of its next session,in early January 1954. The Court also was in recess, but scheduled to start its next term shortly, onOctober 5, with highly controversial racial segregation cases scheduled to be argued before it. Reporting the death of Chief Justice Vinson, the New York Times noted that President Dwight D.Eisenhower could "either fill the vacancy by recess appointment or summon the Senate into specialsession to receive his appointment." (103)

On October 2, 1953, President Eisenhower recess appointed Earl Warren, the governor ofCalifornia, to be Chief Justice, and three days later, on the first day of the Court's October 1953 term,the new Chief Justice was sworn into office. On January 11, 1954, shortly after the 83rd Congressconvened for its second session, the President formally nominated Warren to be Chief Justice. Following two days of Senate Judiciary Committee hearings on the Chief Justice nomination anda favorable committee report, the nomination was confirmed by the Senate on March 1, 1954 byvoice vote.

Consideration by the Senate Judiciary Committee

Although not mentioned in the Constitution, the Senate Judiciary Committee, for the lastcentury and a half, has regularly played an important role midway in the process -- after the Presidentselects, but before the Senate as a whole considers the nominee. Since the end of the Civil War,almost every Supreme Court nomination received by the Senate has first been referred to andconsidered by the Judiciary Committee before being acted on by the Senate as a whole. (104)

Since the late 1960s, the Judiciary Committee's consideration of a Supreme Court nomineealmost always has consisted of three distinct stages -- a pre-hearings investigative stage, followedby public hearings, and concluding with a committee decision on what recommendation to make tothe full Senate. For a detailed discussion of the Committee's pre-hearing stage, see CRS Report RL31989 , Supreme Court Appointment Process, pp. 20-22.

Hearings Stage. During the nineteenth century,the Judiciary Committee routinely considered Supreme Court nominations behind closed doors, withits deliberations during the twentieth century gradually becoming more public in nature. Accordingto one expert source, the earliest Supreme Court confirmation hearings held in open session werethose in 1916 for the nomination of Louis D. Brandeis to be an Associate Justice. (105) In 1925, Harlan F.Stone became the first Supreme Court nominee to appear in person and testify at his confirmationhearings. Neither the Brandeis nor the Stone hearings, however, served as binding precedents. Through the 1940s, the Judiciary Committee often declined to hold open confirmation hearings orto invite Supreme Court nominees to testify. (106)

In 1954, two days of hearing were held on the nomination of Earl Warren to be ChiefJustice. (107) Thehearings were scheduled in part to allow several relatively unknown persons from California anopportunity to state for the record why they opposed the California governor's appointment to theCourt. (108) Thenominee, however, did not appear to testify on his own behalf and was not invited by the committeeto do so.

Hearings in 1955 on the Supreme Court nomination of John M. Harlan marked the beginningof a practice, continuing to the present, of each Court nominee testifying before the JudiciaryCommittee. (109) Inkeeping with this practice, the next person nominated to be Chief Justice, Associate Justice AbeFortas in 1968, appeared at his confirmation hearings, to testify and respond to Senators' questions. The appearance of Justice Fortas before the committee on July 16, 1968 "marked the first time thata nominee to the Chief Justiceship ever had been heard by the Committee and the first time, exceptfor Justices serving on a recess appointment, that a sitting Justice ever had been heard." (110) Likewise, the nexttwo Chief Justice nominees, Warren Burger in 1969 and William H. Rehnquist in 1986, alsoappeared before the committee. The Rehnquist hearings were the first hearings on a Chief Justicenominee to be opened to gavel-to-gavel television coverage. (111)

Reporting the Nomination. In modern practice,after holding hearings on a Supreme Court nomination, the Judiciary Committee meets in opensession to determine what recommendation to "report" to the full Senate. The committee may reportthe nomination favorably, negatively, or make no recommendation at all.

Technically, the committee, if a majority of its members oppose confirmation, may decidenot to report the nomination, to prevent the full Senate from considering the nominee. However,dating back at least to the 1880s, the Judiciary Committee's traditional practice has been to reporteven those Supreme Court nominations that were opposed by a committee majority, thus allowingthe full Senate to make the final decision on whether the nominee should be confirmed. (112) A report with anegative recommendation or no recommendation permits the nomination to go forward, whilealerting the Senate that a substantial number of committee members have reservations about thenominee. (113) Thetraditional practice of the Judiciary Committee to allow the full Senate to make the final decision,applies only to Supreme Court nominations, and not to judicial nominations in general. Historically,as well as in modern practice, lower court nominations (such as to U.S. district courts or U.S. circuitcourts of appeals) are sometimes not reported by the Judiciary Committee, particularly if a nominee'sconfirmation is opposed by a Senator from the nominee's state. (114)

Reporting a Supreme Court nomination, in recent decades, almost always has included the transmittal of a written committee report, which presents the views both of committee memberssupporting and those opposing the nominee's confirmation.

In such a fashion, the most recent Chief Justice nomination, of William H. Rehnquist in 1986, wasreported favorably by the Judiciary Committee by a vote of 13-5, in a printed report, which includedstatements explaining the votes of the majority in favor and of the minority opposed toconfirmation. (115)

By contrast, the previous Chief Justice nomination, of Warren E. Burger in 1969, wasreported favorably by the committee, without a written report. During Senate consideration of thenomination, the absence of a written report from the Judiciary Committee prompted three Senatorsto express concerns. They maintained it was important for the Senate, when considering anappointment of this magnitude, to be able to consult a written report from the Judiciary Committeethat provided a breakdown of any recorded votes by the committee and an explanation of thecommittee's recommendation regarding the nominee. (116)

Senate Debate and Confirmation Vote

After the Judiciary Committee has reported a nomination, it is assigned an executive calendarnumber by the executive clerk of the Senate. (117) Consideration of the nomination is then scheduled by theSenate majority leader, usually in consultation with the minority leader.

Criteria Used to Evaluate Nominees. Once theSenate begins debate on a Supreme Court nomination, many Senators typically will take the floor. Some, in their opening remarks, will underscore the importance of the Senate's "advice and consent"role, and the consequent responsibility to carefully determine the qualifications of a nominee beforevoting to confirm. Invariably, each Senator who takes the floor will state for the record his or herreasons for voting in favor of or against the nominee's confirmation.

The criteria used to evaluate a Supreme Court nominee are a personal, very individual matterfor each Senator. (118) In their floor remarks, some Senators may cite a nominee's professional qualifications or characteras the key criterion, others may stress the importance of the nominee's judicial philosophy or viewson constitutional issues, while still others may indicate that they are influenced in varying degreesby all of these criteria. In recent decades, Senate debate on virtually every Supreme Courtnomination has focused to some extent on the nominee's judicial philosophy, ideology, constitutionalvalues, or known positions on specific legal controversies.

When evaluating a Chief Justice nominee, Senators can be expected to apply criteria whichfocus on the unique demands of that office, in addition to standards they might apply to SupremeCourt nominees in general. This special focus was evident during the Senate's 1986 debate on thenomination of Associate Justice William H. Rehnquist to be Chief Justice. During the debate,various supporters and opponents of the nomination based their positions in significant part onstandards they applied uniquely to a Chief Justice nominee. For instance, Senator Joseph R. Biden,Jr. (D-DE), who opposed the nomination, expressed concern as to "whether Justice Rehnquist canserve effectively as a leader of the Court, and to my mind this does not mean whether or not he canbe an effective administrator, or whether or not he will do that expeditiously." (119) Senator Bidenexplained that he found Justice Rehnquist wanting, based on "two elements" of leadership that hethought necessary in a Chief Justice of the United States:

One, a Chief Justice must exhibit the capability andwillingness to work for and forge a consensus for unanimous opinions in watershed cases, caseswhere if there is not a unanimous decision there would be serious problems in this Nation.... Second,the Chief Justice must demonstrate the flexibility and open-mindedness to put aside his ownphilosophical or legal views when consensus on the Court is required even if he disagrees with themajority's holding. (120)

By contrast, Senator Orrin G. Hatch (R-UT), who supported the nominee, found that JusticeRehnquist more than measured up to the leadership qualities required in a Chief Justice:

For over 15 years, Justice Rehnquist has earned areputation as a leader amongst leaders on the nine-member Court. He knows better than perhapsanyone in the Nation the responsibility of serving as a 'keeper of the contract,' a protector of theagreement between the government and the governed. He, better than perhaps anyone in the Nation,can impart that vision in his fellow Federal judges throughout the Federal Judiciary. He already hasthe trust and respect of his peers and the rest of the bench and bar. (121)

Voting on Both a Chief Justice and an Associate JusticeNomination. When the President selects a sitting Associate Justice to be ChiefJustice and a nominee to succeed the elevated Associate Justice, two nominations will be transmittedto the Senate. If the President sends the nominations to the Senate at the same time, or within daysof each other, the Senate can be expected -- but is not required -- to act on the Chief Justicenomination first.

Historically, there have been four episodes (three successful, one unsuccessful) in whichAssociate Justices were nominated to be Chief Justice and accompanying nominations were madeto fill the positions of the elevated Associate Justices. In reverse chronological order, these involvedthe following nominations of Associate Justices to be Chief Justice: William H. Rehnquist in 1986,Abe Fortas in 1968, Harlan F. Stone in 1941, and Edward D. White in 1910. In a fifth, much earlierepisode, another Associate Justice, William Cushing in 1796, was nominated, by President GeorgeWashington, to be Chief Justice, but Cushing's Chief Justice nomination to the Senate wasunaccompanied by another nomination to fill the Associate Justice seat.

Most recently, in 1986, the Senate received President Ronald Reagan's nominations of William H. Rehnquist to be Chief Justice on June 20 and Antonin Scalia to be Associate Justice onJune 24. On the same day, September 17, the Senate considered and voted to confirm Rehnquist andthen considered and voted to confirm Scalia. (122) Prior to these Senate actions, the Senate Judiciary Committeeheld confirmation hearings first on Rehnquist, and then on Scalia, before favorably reporting bothnominations to the Senate on the same day.

The previous instance in which a President tried (in this case, unsuccessfully) to use a ChiefJustice vacancy to make two Court appointments involved President Lyndon B. Johnson. On June26, 1968, President Johnson nominated both Associate Justice Abe Fortas to be Chief Justice andfederal appellate court judge Homer Thornberry to be Associate Justice. The Senate JudiciaryCommittee held 11 days of confirmation hearings on the two nominations, focusing most of the timeon the Fortas nomination. The committee then reported only the Fortas nomination to the Senate,declining to take further action on the Thornberry nomination while the outcome of the Fortasnomination was in doubt. (123) Subsequently, the Senate rejected a motion to close debateon a motion to proceed to consider the Fortas nomination, after which the Fortas and Thornberrynominations were both withdrawn by the President (the latter having advanced in committee onlythrough the hearings stage).

In another two-appointment episode, however, the Senate acted on the Associate Justicenomination before the Chief Justice nomination. On June 12, 1941, President Franklin DelanoRoosevelt nominated both Harlan F. Stone to be Chief Justice and Senator James F. Byrnes (D-SC)to succeed Justice Stone as Associate Justice. In keeping with a longstanding Senate practice ofdispensing with confirmation hearings for a fellow Member, (124) the Senate confirmedthe Byrnes nomination immediately on June 12, the day of its receipt by the Senate, without firstreferring it to committee. The nomination of Justice Stone to be Chief Justice took a longer route;it was confirmed almost two weeks later, on June 27, after confirmation hearings and being reportedby the Judiciary Committee. Although the Senate had confirmed Senator Byrnes' nomination morequickly, his swearing-in as Associate Justice had to wait until the position was vacated by JusticeStone. Following his confirmation as Chief Justice on June 27, Justice Stone stepped down asAssociate Justice on July 2 and took his judicial oath as Chief Justice on July 3, after whichAssociate Justice Byrnes was sworn in on July 8.

William Howard Taft was the first President to use a Chief Justice vacancy to make twoCourt appointments. On December 12, 1910, he sent to the Senate the nominations of bothAssociate Justice Edward D. White to be Chief Justice and of Willis Van Devanter to fill the positionto be vacated by Justice White. In recognition of Justice White's service in the Senate prior to hisappointment to the Court in 1894, the Senate immediately, by voice vote, confirmed him to be ChiefJustice, declining to refer the nomination of their former Senate colleague to committee. Shortlythereafter, on December 15, the Van Devanter nomination was reported favorably by the SenateJudiciary Committee and, that same day, confirmed by the Senate by voice vote.

Voice Votes, Roll Calls, and Vote Margins. When floor debate on a nomination comes to a close, the presiding officer puts the question ofconfirmation to a vote. In doing so, the presiding officer typically states, "The question is, Will theSenate advise and consent to the nomination of [nominee's name] of [nominee's state of residence]to be an Associate Justice [or Chief Justice] on the Supreme Court?" A vote to confirm requires asimple majority of Senators present and voting.

Since 1967, every Senate vote on whether to confirm a Supreme Court nomination has beenby roll call. (125) Priorto 1967, by contrast, less than half of all of Senate votes on whether to confirm nominees to theCourt were by roll call, the rest by voice vote. (126) Of the 21 nominations made to the office of Chief Justice(from John Jay's nomination in 1789 to William H. Rehnquist's in 1986), 18 received Senate floorvotes on the question of whether to confirm. All 18, except for one (the Senate's vote in 1795 voterejecting the John Rutledge nomination), were in favor of confirmation. Of the 17 Chief Justiceconfirmations, 10 were by voice vote and seven by roll call. (127) The most recent voicevote on a Chief Justice nomination was the 1954 vote to confirm Earl Warren. Since then, the ChiefJustice nominations of Warren E. Burger in 1969 and William H. Rehnquist were confirmed by rollcall votes of 74-3 and 65-33 respectively. The three Chief Justice nominations which did not receivefinal Senate floor votes were, in the face of significant Senate opposition, withdrawn by thePresidents. (128)

Historically, vote margins on Supreme Court nominations have varied considerably. Somerecorded votes, either confirming or rejecting a nomination, have been close. (129) Most votes, however,have been overwhelmingly in favor of confirmation. (130) The closest roll call votes involving Chief Justice nominationswere the Senate's 14-10 rejection of the Rutledge nomination in 1795, the Senate's 25-19 vote in1836 in favor of proceeding to the nomination of Roger B. Taney (which was followed by a 29-15vote to confirm) (131) and the Senate's 45-43 vote in 1968 on a motion to close debate on a motion to proceed to the AbeFortas nomination. (The vote on cloture fell short of the necessary super-majority to close debate,and three days later, the President, at Fortas's request, withdrew the nomination.) (132)

Filibusters and Motions to Close Debate. Senaterules place no general limits on how long floor consideration of a nomination (or most other matters)may last. Without such time limits, Senators opposing a Supreme Court nominee may be able to useextended debate or other delaying actions to prevent a vote from occurring. The use of such dilatoryactions is known as the filibuster. (133)

Since 1949, however, supporters of nominations which encountered extended debate on theSenate floor have had available to them a procedure for placing time limits on that debate -- themotion for cloture. (134) When the Senate adopts a cloture motion, furtherconsideration of the matter being filibustered is limited to 30 hours. By adopting a cloture motion, the Senate may be able to ensure that a nomination will ultimately come to a final vote and bedecided by a voting majority. The majority currently required for cloture on most matters, includingnominations, is three-fifths of the full membership of the Senate -- normally 60 Senators. (135)

Cloture motions have been made in debate on Supreme Court nominations on only threeoccasions, two involving Chief Justice nominations. The first use occurred in 1968 during debateconcerning the nomination of Associate Justice Abe Fortas to be Chief Justice. On September 24,1968, Senate Majority Leader Mike Mansfield (D-MT) called the Senate into executive session andmoved that the Senate proceed to consider the nomination. Debate on that motion began the nextday and continued on September 25, 26, 27, and 30, consuming more than 25 hours. On October1, the Senate failed to invoke cloture, by a vote of 45 in favor and 43 opposed, (136) prompting PresidentLyndon B. Johnson to withdraw the nomination. (137) A detailed historical narrative of the Fortas nomination,published later in 1968, described the floor debate in opposition to Fortas, as a "filibuster intendedto block confirmation of Justice Abe Fortas as Chief Justice of the United States." (138)

A cloture motion to end debate on a Court nomination occurred again in 1971, when theSenate considered the nomination of William H. Rehnquist to be an Associate Justice. Although thecloture motion failed by a 52-42 vote, (139) Rehnquist subsequently was confirmed. In 1986, a motion wasfiled to close debate on a third Supreme Court nomination, this time of sitting Justice Rehnquist tobe Chief Justice. Supporters of the nomination mustered more than the three-fifths majority neededto close debate (with the Senate voting for cloture 68-31), (140) and Justice Rehnquistsubsequently was confirmed as Chief Justice.

Although use of the filibuster against Supreme Court nominations has been relatively rarein the past, the number of filibusters conducted against lower court nominations has increaseddramatically in recent years. During the 108th Congress, extended debate was successfully used inthe Senate to block confirmation votes on 10 of President George W. Bush's 34 nominees to U.S.circuit court of appeals judgeships, and several of these nominations, after resubmission by PresidentBush in the 109th Congress, again faced the prospect of being filibustered by Senate Democrats. Inresponse, in May of 2005, leaders of the Senate's Republican majority announced their intention, iffilibusters against nominations continued, to amend the chamber's rules to require the vote of onlya simple Senate majority to close Senate debate on judicial nominations. (141)

A Senate confrontation between the two parties over judicial filibusters was averted on May23, 2005, when a compromise agreement was reached by a coalition of seven Democratic and sevenRepublican Senators. As part of the agreement, the coalition's Democratic Senators pledged not tolend their support to filibusters against judicial nominations except under "extraordinarycircumstances," while the Republican Senators in the coalition agreed not to support any change inthe Senate rules to bar filibusters against judicial nominations, as long as the "spirit and continuing commitments made in this agreement" were kept by all of Senators in the coalition. (142)

In recent years, some Senators have raised the possibility of a filibuster being conductedagainst a future Supreme Court nomination, particularly if a vacancy on the Court occurred duringthe presidency of George W. Bush. (143) In the current political climate, a filibuster against anomination to the Court also could be regarded as a possibility, if a substantial number of Senatorsopposed a nominee's confirmation and viewed extended debate as a tactic that might succeed inblocking a Senate vote on confirmation from occurring. Such a strategy, however, would no longerbe an option to opponents of the nominee if the Senate's rules, either prior to or during debate overthe nomination, were modified to curtail use of filibusters against judicial nominations. (144)

Nomination of John G. Roberts, Jr.

On September 5, 2005, President George W. Bush announced he would nominate U.S. Courtof Appeals Judge John G. Roberts, Jr., to succeed Chief Justice William H. Rehnquist, who had diedtwo days earlier. The President cited Judge Roberts' "extraordinary career," his "striking ability asa lawyer and his natural gifts as a leader." (145) The death of Chief Justice Rehnquist, the President observed,"leaves the center chair empty just four weeks left before the Supreme Court reconvenes." It is "inthe interest of the Court and the country," the President continued, "to have a chief justice on thebench on the first full day of the fall term." (146)

Judge Roberts had been nominated by President Bush earlier, on July 29, 2005, to succeedretiring Associate Justice Sandra Day O'Connor. (147) Five weeks later, the pre-hearings phase for that nominationwas approaching its end, (148) with the Senate Judiciary Committee set to begin confirmationhearings for Judge Roberts on September 6, the first day of the Senate's return from its Augustrecess.

The death of Chief Justice Rehnquist on September 3, 2005, however, dramaticallytransformed the appointments equation for the Supreme Court, the President and the Senate. As aresult of the Chief Justice's passing, there were now two vacancies -- an immediate Chief Justicevacancy, and a prospective vacancy with the announced intention of Justice O'Connor to retire uponthe confirmation of her successor. For President Bush, the Rehnquist vacancy provided a newopportunity, if the President wished -- to appoint Judge Roberts to a different seat on the Court. Inthis vein, a newspaper reported in its September 5 morning editions that Judge Roberts was nowbeing considered by the Bush White House for nomination to be Chief Justice:

The idea of making Roberts chief justice seems to havenatural appeal. Roberts, a former lawyer in the Ronald Reagan and George H.W. Bushadministrations who now serves as a judge on the U.S. Court of Appeals for the District of ColumbiaCircuit, was first interviewed by the White House in April not for O'Connor's seat but in theexpectation that Rehnquist would retire or die.

As a former Rehnquist clerk, Roberts could be expectedto continue in the same conservative course, and at 50 he would have a long tenure in the top slot. After six weeks of media scrutiny, he is also a known commodity who has not generated strongopposition among Senate Democrats.

The mechanics of a switch would not be hard. Bushwould withdraw Roberts's nomination as associate justice and then simultaneously nominate himas chief justice. Bush could then take his time choosing someone else to replace O'Connor becauseshe has agreed to remain on the court until her successor's confirmation. (149)

Indeed, the very morning on which the above news report appeared, President Bush wouldannounce his selection of Judge Roberts to be Chief Justice. In doing so, the President alsoemphasized that, from his perspective, the Senate was "well along in the process of consideringJudge Roberts' qualifications." (150) The next day, September 6, 2005, the Chairman of theJudiciary Committee, the committee's Ranking Democratic Member, and Senate leaders announceda new schedule for Judge Roberts' confirmation hearings, this time as nominee to be Chief Justice. Hearings on the nomination of Judge Roberts for Chief Justice were held by the JudiciaryCommittee on September 12, 13, 14 and 15, (151) and on September 22, the Judiciary Committee approved theRoberts nomination by a vote of 13-5, with three Democrats on the committee joining all 10Republicans in favor of Judge Roberts. (152) The committee action sent the nomination to the full Senate,where a vote on confirmation is expected on September 29.

In the full Senate, Members will evaluate Judge Roberts' fitness to be Chief Justiceaccording to their own criteria and concerns. In large part, their concerns will mirror the traditionalconcerns of Presidents with professional excellence, character, and leadership qualities in a ChiefJustice nominee. Some Senators, however, also will be concerned with the nominee's judicialphilosophy or views on constitutional issues and how, in their view, the appointment might affectthe Court's future direction on major legal and constitutional questions.

It has been suggested, as noted earlier, that if a Supreme Court nominee were to provecontroversial, a filibuster against the nomination would be a possibility, unless Senate rules weremodified to curtail the use of filibusters against judicial nominees. Under current Senate rules, thenomination would fall short of confirmation if, in the event of a filibuster, three-fifths of the Senate'sfull membership failed to vote in favor of closing debate. As also noted earlier, an agreementreached on May 23, 2005, by a coalition of seven Democratic and seven Republican Senators avertedwhat until then had seemed an imminent confrontation between the two parties over judicialfilibusters. As part of that agreement, the coalition's Democratic Senators pledged not to lend theirsupport to filibusters against judicial nominations except under "extraordinary circumstances." Inthe immediate aftermath of the Judiciary Committee's 13-5 approval of Judge Roberts on September22, 2005, there were no reports of plans to filibuster by any Senators who had announced oppositionto the Roberts nomination.

If and when the Senate votes to close debate on the Chief Justice nomination, the next andultimate test for appointment will be the Senate vote on whether to confirm. A vote to confirmwould require a simple majority of Senators present and voting. If the vote of the majority is toconfirm, the confirmed nominee would then receive a commission from the President, officiallyappointing him to the Court. After receiving his commission, Judge Roberts would be sworn intooffice, becoming the 17th Chief Justice of the United States.

Table 1. Nominees for Chief Justice of the United States, 1789 to the Present: Dates of Nomination, FinalAction bythe Senate or President, Judicial Oath and Termination of Service, and Ages at Times of Appointment and Termination of Service

Sources : William D. Bader and Roy M. Mersky , The First One Hundred Justices, (Buffalo: William S. Hein & Co., Inc., 2004 ); Artemus Ward, Deciding to Leave, (Albany: State University of New York Press, 2003); Journal of the Executive Proceedings of the Senate of the United States ofAmerica (various volumes); The Supreme Court of the United States (an undated pamphlet published by the United States Supreme Court); and MaevaMarcus and James R. Perry, editors, The Documentary History of the Supreme Court of the United States, 1789-1800 (New York: Columbia UniversityPress, 1985).

Legend: Name in Bold -- Was serving as Associate Justice at time of nomination to be Chief Justice.

Name in Italics -- Had earlier served as Associate Justice, prior to, but not at, time of nomination to be Chief Justice.

Name in Bold Italics -- Had earlier served as Chief Justice.