GW Law Faculty Publications & Other Works

Document Type

Article

Publication Date

2006

Status

Accepted

Abstract

How do we get a new chief justice? Traditionally, the President decides between nominating a newcomer and promoting a sitting associate justice, and places either nominee before the Senate for its advice and consent. But this is not constitutionally required, or at least not evidently so, and there is no better time to confront this fact. This short essay explains that Congress could develop a different mechanism for promoting justices without subjecting them to a second appointment - providing, for example, that the position would rotate among sitting justices based on seniority, or that the justices would elect a chief from among themselves. This could be the exclusive method for selecting a chief justice, or merely a default that would confront the President and the Senate with incumbents to be dispossessed if they lacked merit. In any case, there is a good argument as a matter of law that our tradition can be changed, and that argument - and the potential advantages of alternative methods, in terms of decreasing the opportunities for strategic behavior by the political branches and by the justices themselves - deserves fuller consideration.

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