What happens if the chief justice dies

However, the only recess-appointed Supreme Court Justice who was not later confirmed by the Senate, Chief Justice John Rutledge in , resigned before his term expired. A vacancy on the Court is not necessarily created if a Justice becomes permanently disabled from performing the duties of the office.

The vacancy, in that instance, is created only when the Justice either steps down on his or her own volition or dies in office. When a permanently disabled Justice declines to retire, no law or Court rule provides for his or her removal.

While statutory procedures exist for lower courts to certify the permanent disability of a colleague, 57 none exists for the Supreme Court. Criteria for Selecting a Nominee. The precise criteria used in selecting a Supreme Court nominee will vary from President to President. Two general motivations, however, appear to underlie the choices of almost every President, whether the appointment is for Chief Justice or for an Associate Justice seat. One motivation is to have the nomination 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 was successfully made for a nominee having the highest professional qualifications.

Virtually every President is presumed to take into account a wide range of political considerations 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 ideological views appear compatible with their own.

This means that they want justices on the Court who will vote to decide cases consistent with the president's policy preferences. For political or other reasons, such nominee attributes as party affiliation, geographic origin, ethnicity, religion, and gender may also be of particular importance to the President. Another consideration will be the prospects for a potential nominee receiving Senate confirmation. Even if a controversial nominee is believed to be confirmable, an assessment must be made as to whether the benefits of confirmation will be worth the costs of the political battle to be waged.

Most Presidents also want their Supreme Court nominees to have unquestionably outstanding legal qualifications. Presidents look for a high degree of merit in their nominees not only in recognition of the demanding nature of the work that awaits someone appointed to the Court, but also because of the public's expectations that a Supreme Court nominee be highly qualified.

Closely related to the expectation that a Supreme Court nominee have excellent professional qualifications are the ideals of integrity and impartiality in a nominee. Most Presidents presumably will be aware of the historical expectation, dating back to Alexander Hamilton's pronouncements in the Federalist Papers , that a Justice be a person of unquestioned integrity who is able to approach cases and controversies impartially, without personal prejudice.

A President, however, may have additional concerns when the Supreme Court vacancy to be filled is that of the Chief Justice. Besides requiring that a candidate be politically acceptable, have excellent legal qualifications, and enjoy a reputation for integrity, a President might be concerned that his nominee have proven leadership qualities necessary to effectively perform the tasks specific to the position of Chief Justice.

Such qualities, in the President's view, could include administrative and human relations skills, with the latter especially important in fostering collegiality among the Court's members. The President also might look for distinction or eminence in a Chief Justice nominee sufficient to command the respect of the Court's other Justices, as well as further public respect for the Court.

A President, too, might be concerned with the age of the Chief Justice nominee, requiring, for instance, that the nominee be at least of a certain age to insure an adequate degree of maturity and experience relative to the other Justices but not above a certain age to allow for 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 is illustrative of the wide range of criteria a President might apply when deciding whom to appoint to fill a Chief Justice vacancy.

Vinson died unexpectedly. Within days, the President, according to one news analysis, was being "urged by prominent members of his party to apply all sorts of different tests -- political, geographical, personal, philosophical" -- in deciding on a successor to Vinson.

A major geographical consideration, which was said to favor the appointment of Earl Warren, governor of California, was that among the Court's eight remaining members there were "no representatives from the West, and of the fifty-six appointments to the Court since the beginning of the Civil War, only two [had] been from California.

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 the President by Dewey supporters was that "all other things being equal, the authority of a Chief Justice tends to increase with the duration of his service on the court.

Ultimately, the President appointed Governor Warren. President Eisenhower and his closest political advisers were agreed "that Warren's experience, leadership qualities, and administrative expertise constituted precisely the kind of medicine that the badly faction-rent Vinson Court needed. In his memoirs, President Eisenhower noted that, from the beginning of his administration in , he wanted the federal judges he selected to "command the respect, confidence, and pride of the population.

As to Supreme Court appointments, Eisenhower recounted, another consideration was the past party affiliations of the Court's members. In , before the death of Chief Justice Vinson, "eight of the nine members of the Court had been classed as Democrats before joining the Court and only one -- Associate Justice Harold Burton -- as a Republican.

Naturally for the good of the country, I hoped eventually to achieve a better balance in this regard. Of various candidates for Chief Justice that immediately came to mind, the former President recalled, most were automatically eliminated either because of advanced age or a record of unsound health. These considerations, he noted, ruled out a number of members of the Court for elevation to Chief Justice, while two other Justices "represented what I thought were extreme views in matters that could be expected to come before the Court for decision.

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 Supreme Court Justices:. In the remainder of his Administration, President Eisenhower made four additional Supreme Court appointments. Unlike Governor Warren, who had no prior judicial experience, Eisenhower's four subsequent appointees to the Court all had prior judicial service three in the federal judiciary and one on a state supreme court.

The Role of Senate Advice. Historically, Presidents have varied in the degree to which they have sought or used advice from Senators in selecting 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 Senate Judiciary Committee before choosing a nominee.

Conversely, input from the Senate might draw new Supreme Court candidates to the President's attention, or provide additional reasons to nominate a person who already is on the President's list of prospective nominees. 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 to the 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 nominee from that Member's state.

While usually invoked by home-state Senators to block lower federal court nominees whom they find unacceptable, the custom of "senatorial courtesy" has sometimes also played a part in the defeat of Supreme Court nominations. Sometimes, however, a President may deliberately limit the role performed by Senate advice in the selection of a Supreme Court nominee.

In , for instance, President Richard M. Nixon noted that in his selection of Warren E. Burger to be Chief Justice, he had not received approval from the Senators of the state from which Burger had originally come Minnesota or the state in which he then resided Virginia. In turn, the Attorney General would submit to the President "the case for each man," with the President then making the decision. President Nixon explained that he "did not want to become personally involved in the contest, the very lively contest among several very well-qualified people for this position.

Constitutional scholars have differed as to how much importance the framers of the Constitution attached to the word "advice" in the phrase "advice and consent.

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 entitled to give advice to a president on whom as well as what kinds of persons he should nominate to certain posts, but this advice is not binding.

At a February 24, , news conference, Senator Specter, in response to a question, stated that for a President. Selecting from Within or Outside the Court. The President may select a Chief Justice nominee from within -- i. Each option may present the President with different considerations, attractions and drawbacks. If the President's choice to be Chief Justice is a sitting Associate Justice, the latter must be nominated and confirmed again to the Court -- this time to the position of Chief Justice.

The appointment of an Associate Justice to be Chief Justice is often referred to as an "elevation. In the past, Presidents have sought to elevate a sitting Associate Justice to be Chief Justice on five occasions, and were successful on three of those occasions. Appointment of an Associate Justice to be Chief Justice, if successful, creates a vacancy in the Associate Justice position.

Selecting a Chief Justice nominee from within the Court thus affords the President the opportunity, in conjunction with the Chief Justice appointment, to make a second Supreme 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 therefore being able to make two Court appointments, might appeal to a President if he is concerned with making the Court more in accord with his own values or vision for the Court.

Moreover, the Associate Justice vacancy could be regarded as an opportunity to nominate a relatively young person to the Court, whose influence might be felt on the Court for years -- and who himself or 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 confirmation battles in the Senate, generating more conflict or controversy in Congress's upper chamber than the President would care to contend with. One Supreme Court appointment, even of a relatively controversial nominee, might not provoke widespread opposition in the Senate, if the appointment were not, by itself, seen to portend a significant change in the ideological "balance" of the Court's membership. By contrast, two Court appointments, made at the same time, might, if balance on the Court were seen to be at stake, galvanize the President's political opponents in the Senate to oppose either or both nominees.

When nominating someone from within the Court to be Chief Justice, the President does not have to wait for the Chief Justice nomination to be confirmed before nominating a successor to the Associate 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, which he or she presumably will do only after receiving Senate confirmation to be Chief Justice.

If the President chooses someone from outside of the Court to be Chief 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 Justices prior to the time that they were nominated to be Chief Justice.

A single Chief Justice nomination from outside the Court might seem the more desirable option to a President if he sees no clear potential leader or unifier among the Court's current Associate Justices. A President particularly might be reluctant to choose a Chief Justice nominee from among Associate Justices who are highly polarized or antagonistic to each other, as such an appointment might only worsen divisiveness within the Court.

In , when explaining his choice of Warren E. Nixon noted that the option of selecting a nominee from within the Court had been considered by him on at least one occasion. During their meeting, Justice Stewart said that "he felt that it would not be in the best interest of the Court to appoint a sitting judge on the Court to Chief Justice. A Chief Justice nomination from outside the Court also allows the White House to concentrate its efforts to secure confirmation on one nomination, rather than on two.

For the current President, George W. Bush, one analyst has suggested that a single nomination strategy for Chief Justice. Recess Appointments to the Court. On 12 occasions in our nation's history most of them in the nineteenth century , Presidents have made temporary appointments to the Supreme Court without submitting nominations to the Senate.

However, the terms of these "recess appointments" were limited, expiring at the end of the next session of Congress unlike the lifetime appointments Court appointees receive when nominated and then confirmed by the Senate. Despite the temporary nature of these appointments, every person appointed to the Court during a recess of the Senate, except one, ultimately received a lifetime appointment after being nominated by the President and confirmed by the Senate.

In February , he resigned from that position, to become chief justice of South Carolina's supreme court. Rutledge then returned to the national scene when President Washington recess appointed him Chief Justice on July 1, two days after nation's first Chief Justice, John Jay, stepped down upon being elected governor of New York.

The appointment of Rutledge was made a few days after the 4th Congress began an adjournment that lasted more than five months.

Rutledge, however, was a controversial nominee, in large part because of a statement he had made on July 16, after his recess appointment, but before receiving his commission that was highly critical of the Jay Treaty with Great Britain, which the Senate had ratified three weeks earlier.

Besides Rutledge in , only one other Chief Justice received a recess appointment to that position -- Earl Warren in 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 The Court also was in recess, but scheduled to start its next term shortly, on October 5, with highly controversial racial segregation cases scheduled to be argued before it.

Eisenhower could "either fill the vacancy by recess appointment or summon the Senate into special session to receive his appointment.

On October 2, , President Eisenhower recess appointed Earl Warren, the governor of California, to be Chief Justice, and three days later, on the first day of the Court's October term, the new Chief Justice was sworn into office. On January 11, , shortly after the 83rd Congress convened 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 and a favorable committee report, the nomination was confirmed by the Senate on March 1, by voice vote.

Although not mentioned in the Constitution, the Senate Judiciary Committee, for the last century and a half, has regularly played an important role midway in the process -- after the President selects, 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 and considered by the Judiciary Committee before being acted on by the Senate as a whole.

Since the late s, the Judiciary Committee's consideration of a Supreme Court nominee almost always has consisted of three distinct stages -- a pre-hearings investigative stage, followed by public hearings, and concluding with a committee decision on what recommendation to make to the full Senate. Hearings Stage. During the nineteenth century, the Judiciary Committee routinely considered Supreme Court nominations behind closed doors, with its deliberations during the twentieth century gradually becoming more public in nature.

According to one expert source, the earliest Supreme Court confirmation hearings held in open session were those in for the nomination of Louis D. Brandeis to be an Associate Justice. Stone became the first Supreme Court nominee to appear in person and testify at his confirmation hearings. Neither the Brandeis nor the Stone hearings, however, served as binding precedents. Through the s, the Judiciary Committee often declined to hold open confirmation hearings or to invite Supreme Court nominees to testify.

In , two days of hearing were held on the nomination of Earl Warren to be Chief Justice. Hearings in on the Supreme Court nomination of John M. Harlan marked the beginning of a practice, continuing to the present, of each Court nominee testifying before the Judiciary Committee. The appearance of Justice Fortas before the committee on July 16, "marked the first time that a nominee to the Chief Justiceship ever had been heard by the Committee and the first time, except for Justices serving on a recess appointment, that a sitting Justice ever had been heard.

Rehnquist in , also appeared before the committee. The Rehnquist hearings were the first hearings on a Chief Justice nominee to be opened to gavel-to-gavel television coverage. Reporting the Nomination. In modern practice, after holding hearings on a Supreme Court nomination, the Judiciary Committee meets in open session to determine what recommendation to "report" to the full Senate.

The committee may report the nomination favorably, negatively, or make no recommendation at all. Technically, the committee, if a majority of its members oppose confirmation, may decide not to report the nomination, to prevent the full Senate from considering the nominee. However, dating back at least to the s, the Judiciary Committee's traditional practice has been to report even those Supreme Court nominations that were opposed by a committee majority, thus allowing the full Senate to make the final decision on whether the nominee should be confirmed.

Historically, as well as in modern practice, lower court nominations such as to U. 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 members supporting and those opposing the nominee's confirmation. In such a fashion, the most recent Chief Justice nomination, of William H. Rehnquist in , was reported favorably by the Judiciary Committee by a vote of , in a printed report, which included statements explaining the votes of the majority in favor and of the minority opposed to confirmation.

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

After the Judiciary Committee has reported a nomination, it is assigned an executive calendar number by the executive clerk of the Senate. Criteria Used to Evaluate Nominees.

Once the Senate 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 before voting to confirm.

Invariably, each Senator who takes the floor will state for the record his or her reasons 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 matter for each Senator.

In recent decades, Senate debate on virtually every Supreme Court nomination has focused to some extent on the nominee's judicial philosophy, ideology, constitutional values, or known positions on specific legal controversies. When evaluating a Chief Justice nominee, Senators can be expected to apply criteria which focus on the unique demands of that office, in addition to standards they might apply to Supreme Court nominees in general.

This special focus was evident during the Senate's debate on the nomination 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 on standards 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 can serve effectively as a leader of the Court, and to my mind this does not mean whether or not he can be an effective administrator, or whether or not he will do that expeditiously. By contrast, Senator Orrin G. Hatch R-UT , who supported the nominee, found that Justice Rehnquist more than measured up to the leadership qualities required in a Chief Justice:.

When the President selects a sitting Associate Justice to be Chief Justice and a nominee to succeed the elevated Associate Justice, two nominations will be transmitted to the Senate. If the President sends the nominations to the Senate at the same time, or within days of each other, the Senate can be expected -- but is not required -- to act on the Chief Justice nomination first.

Historically, there have been four episodes three successful, one unsuccessful in which Associate Justices were nominated to be Chief Justice and accompanying nominations were made to fill the positions of the elevated Associate Justices. In reverse chronological order, these involved the following nominations of Associate Justices to be Chief Justice: William H.

Rehnquist in , Abe Fortas in , Harlan F. Stone in , and Edward D. White in In a fifth, much earlier episode, another Associate Justice, William Cushing in , was nominated, by President George Washington, to be Chief Justice, but Cushing's Chief Justice nomination to the Senate was unaccompanied by another nomination to fill the Associate Justice seat.

On the same day, September 17, the Senate considered and voted to confirm Rehnquist and then considered and voted to confirm Scalia.

The previous instance in which a President tried in this case, unsuccessfully to use a Chief Justice vacancy to make two Court appointments involved President Lyndon B. The Senate Judiciary Committee held 11 days of confirmation hearings on the two nominations, focusing most of the time on 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 Fortas nomination was in doubt. In another two-appointment episode, however, the Senate acted on the Associate Justice nomination before the Chief Justice nomination.

In keeping with a longstanding Senate practice of dispensing with confirmation hearings for a fellow Member, the Senate confirmed the Byrnes nomination immediately on June 12, the day of its receipt by the Senate, without first referring 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 reported by the Judiciary Committee.

Although the Senate had confirmed Senator Byrnes' nomination more quickly, his swearing-in as Associate Justice had to wait until the position was vacated by Justice Stone. In recognition of Justice White's service in the Senate prior to his appointment to the Court in , the Senate immediately, by voice vote, confirmed him to be Chief Justice, declining to refer the nomination of their former Senate colleague to committee.

Shortly thereafter, on December 15, the Van Devanter nomination was reported favorably by the Senate Judiciary Committee and, that same day, confirmed by the Senate by voice vote.

When floor debate on a nomination comes to a close, the presiding officer puts the question of confirmation to a vote. In doing so, the presiding officer typically states, "The question is, Will the Senate 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? Since , every Senate vote on whether to confirm a Supreme Court nomination has been by roll call.

Rehnquist's in , 18 received Senate floor votes on the question of whether to confirm. All 18, except for one the Senate's vote in vote rejecting the John Rutledge nomination , were in favor of confirmation. Of the 17 Chief Justice confirmations, 10 were by voice vote and seven by roll call. Since then, the Chief Justice nominations of Warren E. Burger in and William H. Rehnquist were confirmed by roll call votes of and respectively.

The three Chief Justice nominations which did not receive final Senate floor votes were, in the face of significant Senate opposition, withdrawn by the Presidents. Historically, vote margins on Supreme Court nominations have varied considerably. Some recorded votes, either confirming or rejecting a nomination, have been close. Taney which was followed by a vote to confirm and the Senate's vote in on a motion to close debate on a motion to proceed to the Abe Fortas 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.

Filibusters and Motions to Close Debate. Senate rules 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 use extended debate or other delaying actions to prevent a vote from occurring. The use of such dilatory actions is known as the filibuster.

Since , however, supporters of nominations which encountered extended debate on the Senate floor have had available to them a procedure for placing time limits on that debate -- the motion for cloture. By adopting a cloture motion, the Senate may be able to ensure that a nomination will ultimately come to a final vote and be decided by a voting majority. The majority currently required for cloture on most matters, including nominations, is three-fifths of the full membership of the Senate -- normally 60 Senators.

Cloture motions have been made in debate on Supreme Court nominations on only three occasions, two involving Chief Justice nominations. The first use occurred in during debate concerning the nomination of Associate Justice Abe Fortas to be Chief Justice. Debate on that motion began the next day and continued on September 25, 26, 27, and 30, consuming more than 25 hours.

On October 1, the Senate failed to invoke cloture, by a vote of 45 in favor and 43 opposed, prompting President Lyndon B. Johnson to withdraw the nomination. A cloture motion to end debate on a Court nomination occurred again in , when the Senate considered the nomination of William H.

Rehnquist to be an Associate Justice. Although the cloture motion failed by a vote, Rehnquist subsequently was confirmed. Definition of judicial office. Marginal note: Annuity payable to supernumerary judge. Marginal note: Annuity for former supernumerary judge. Marginal note: Annuity — election under section 31, 32 or Marginal note: Annuity — election under section Marginal note: Annuity payable to chief justice.

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Democrats have few tools at their disposal to prevent McConnell and President Donald Trump from installing another conservative on the bench. Visit Business Insider's homepage for more stories. Get a daily selection of our top stories based on your reading preferences. Loading Something is loading. Email address. Sign up for notifications from Insider! Stay up to date with what you want to know.