Nomination of John G. Roberts, Jr.
The lifetime appointment of the Chief Justice of the United States is an event of major significance in American politics because of the enormous power that the Supreme Court exercises as the highest appellate court in the federal judiciary. The Chief Justice, like each of the Court's other eight Justices, casts one vote when the Court rules on cases. However, the Chief Justice is also "first among equals" and exercises a unique leadership role as the presiding officer of the Court, as the manager of the Court's overall operations, and as head of the federal judicial branch of government. There is no formal list of qualifications for the job; the Constitution's only mention of the Chief Justice is as presiding officer of the Senate during an impeachment trial of the President. Chief Justice appointments occur infrequently, with only 16 individuals having served in that position since 1789 -- an average tenure of 13½ years per Chief Justice.
The process for appointing a Chief Justice is the same as for appointing Associate Justices and typically involves a sharing of responsibilities between the President, who nominates the Justices, and the Senate, which provides "advice and consent." (Exceptions to this have been rare instances when the President has made temporary "recess appointments" to the Court, which do not require the Senate's approval.) Vacancies on the Court can occur as a result of death, retirement, or resignation of a Justice. Chief Justice nominees may be selected from the ranks of sitting Associate Justices (as three of the 16 Chief Justices were) or from outside the Court, with each approach, from the perspective of the President, having certain advantages and disadvantages. The criteria that Presidents use in selecting a Supreme Court nominee vary, but typically involve policy and political considerations as well as a desire to select a person with outstanding professional qualifications and unquestioned integrity. Leadership qualities may also be important when the Chief Justice position is involved. Presidents have also varied in the degree to which they have sought or used advice from Senators in selecting Supreme Court nominees.
As part of Senate consideration, the Judiciary Committee holds hearings on the nominee and votes on whether to report the nomination favorably, unfavorably, or without recommendation. Regardless of the outcome of that vote, the reporting of a Supreme Court nomination sends it to the full Senate for debate and a vote. Like the President, Senators may evaluate the nominee by such standards as professional excellence, integrity, and leadership qualities, but may also (again, as the President is free to do) focus on the nominee's judicial philosophy, views on constitutional issues, or how they believe the appointment might affect the Court's future direction on major legal and constitutional issues.
Under any circumstances, the appointment of a new Chief Justice will command the attention of Congress, especially the Senate, which votes on whether to confirm judicial nominations. Even more attention could be expected concerning such an event in the current political environment, in light of the controversy that has recently surrounded the judicial appointment process and the importance the President and Senators of both parties have attached to upcoming Supreme Court appointments.
On September 3, 2005, Chief Justice William H. Rehnquist died, after having served almost 19 years as Chief Justice.(2) He had been diagnosed with cancer in October 2004 and, although in ill health since then, had managed to lead the Court through its last term, which ended in late June 2005. His death came about two months after Associate Justice Sandra Day O'Connor had announced her intention to retire from the Court,(3) and only a few days before the scheduled start of confirmation hearings, on September 6, 2005, for her nominated successor, John G. Roberts, Jr., a U.S. appellate court judge. On September 6, President George W. Bush withdrew the Roberts nomination for the O'Connor seat and instead nominated Judge Roberts for Chief Justice.(4) At age 50, Judge Roberts, if confirmed by the Senate, would become the youngest Chief Justice at time of confirmation in more than 200 years.(5) Out of respect for the late Chief Justice, whose funeral was held on September 7, the Senate Judiciary committee postponed the 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 22 approved Judge Roberts to be Chief Justice by a 13-5 vote. That action sent the nomination to the full Senate, which is expected to vote on whether to confirm Judge Roberts on September 29.
All other things being equal, the appointment of a Chief Justice, owing to the responsibilities of the office and its symbolic importance, is foremost among the appointments that a President makes 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 attention is expected in the current political environment, in light of the controversy that has recently surrounded the judicial appointment process and the importance that the President and Senators of both parties have attached to upcoming Supreme Court appointments.
Other factors, moreover, can further complicate the appointment of a Chief Justice. The process, for instance, might become more contentious if the appointment of a new Chief Justice were seen as affecting the ideological balance of the Court, and thus galvanize opposition from Senators unhappy with the implications of the appointment. The process also might become more complicated if another Supreme Court appointment needs to be made at or around the same time as the Chief Justice appointment. This situation can arise, for instance, if a President nominates an Associate Justice to be Chief Justice, or if (as happened recently) an Associate Justice stepped down at about the same time as a Chief Justice vacancy were created -- in either case, creating an Associate Justice vacancy for the President to fill.
This report is intended to help show what is unique about the office and to shed light on the process by which a Chief Justice is appointed. Hence, an initial section reviews the vast range of duties and responsibilities of the Chief Justice and the qualifications considered necessary for one to perform effectively in that office. A second section then examines the Supreme Court appointment process, focusing on the appointment of Chief Justices. At the end of this report, a table lists the names of all persons nominated for Chief Justice, from 1789 to the present, including their 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 it applies to Associate Justice as well as Chief Justice nominees, see CRS Report RL31989, Supreme Court Appointment Process: Roles of the President, Judiciary Committee, and Senate.
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 Senate during an impeachment trial of the President. Otherwise the Constitution does not mention the Chief Justice. The Judiciary Act of 1789, one of the first laws enacted by the first Congress, stipulated that the Supreme Court would consist of a Chief Justice and five Associate Justices.(9) In the two centuries that followed, Congress enacted legislation authorizing certain powers to the Chief Justice, and other duties have evolved over time through custom and practice.
The Chief Justice is also manager of the Supreme Court's building and the overall operations of 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 include approving the appointment of some court employees and the rules of the Supreme Court Library.
As noted, the office of Chief Justice requires that its occupant be able to perform in many demanding roles -- as presiding officer of the Court, judge, constitutional scholar, statesman, consensus-builder, advocate, and administrator. Nevertheless, there is no formal list of qualifications for the job -- not even a requirement that a nominee be a lawyer,(32) although every Justice to date has been a lawyer.
These attributes would appear to be especially important for a Chief Justice, as the leader of the Court.
Brief Description of the Appointment Process. The modern-day process for appointing a Chief Justice is the same as that for appointing Associate Justices to the Court.(42) The need for a Supreme Court appointment arises when a vacancy occurs on the Court due to the death, retirement, or resignation of a Justice (or when a Justice announces the intention to retire or resign). At that point, it becomes the President's constitutional responsibility to select a successor to the vacating Justice. A Chief Justice appointment may be made only when there is, or is scheduled to be, a vacancy in the position of Chief Justice; the President may not use the occasion of 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 the President 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 to receive advice from whomever they choose. The President may, but is not required to, seek advice from Members of the Senate. Advice may also come from many other sources, including House Members, officials in the President's administration, past and current Supreme Court Justices, party leaders, interest groups, and others.
The appointment process officially begins when the President selects someone to fill the Court vacancy. Except in rare cases of temporary recess appointments, the President will seek to give this person a lifetime appointment, which will require Senate consent. To obtain the Senate's approval, the President submits a written nomination of the person to the Senate. Usually on the same 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 its own intensive investigation into the nominee's background. When its investigation is completed, the Judiciary Committee holds hearings on the nomination, during which the nominee typically appears to testify and answer questions from Committee members. Then the committee votes on whether 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, like a favorable report, permits the nomination to go forward, to be considered by Senate as a whole, but it also alerts the Senate that a substantial number of committee members have reservations about the nominee.
In the next stage, consideration of the nomination by the full Senate is scheduled by the Senate majority leader, usually in consultation with the minority leader. If there is extended debate by opponents of the nomination, commonly called a filibuster, debate may be brought to a close by a "cloture" vote of three-fifths of the full Senate membership. (If three-fifths of the Senate's Members 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 taking place -- a scenario, however, which has played out that way only once in the past.) After Senate debate 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 to confirm, the nomination is defeated, and a resolution of disapproval is forwarded to the President.
A President also may make a Supreme Court appointment without the Senate's consent, when the Senate is in recess. Such "recess appointments," however, are temporary, with their terms expiring at the end of the Senate's next session. Historically, recess appointments to the Supreme Court 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.
Constitutional Language on Supreme Court Appointments. Under the Constitution, Justices on the Supreme Court receive lifetime appointments, holding office "during good Behaviour."(49) Such job security in the federal government is conferred solely on Supreme Court Justices and judges in lower federal courts established 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 the lower federal courts) from the President and Congress.(51) Once Justices are confirmed, a President has no power to remove them from office. A Justice may be removed by Congress, but only through the difficult and involved process of impeachment. Only one Supreme Court Justice has ever been impeached (in an episode that occurred in 1804), and he remained in office after being acquitted by the Senate.(52) Many Justices serve for 20 to 30 years and sometimes are still on the Court decades after the President who nominated them has left office.
The procedure for appointing a Justice to the Supreme Court is provided for in the Constitution of the United States in only a few words. The "Appointments Clause" in the Constitution (Article II, Section 2, Clause 2) states that the President "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint ... Judges of the supreme Court."(53) While the process of appointing Justices has undergone some changes over two centuries, its most essential feature -- the sharing of power between the President and the Senate -- has remained unchanged: To receive lifetime appointment to the Court, one must first be formally selected ("nominated") by the President and then approved ("confirmed") by the Senate.
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.(58) Instead, the Court "relies on justices to determine when they are no longer fit to serve."(59) The President is empowered to appoint someone to take the place of a disabled Justice only when he or she, by death or retirement, vacates the position.
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.
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).
Selecting from Within or Outside the Court. The President may select a Chief Justice nominee from within -- i.e., from among the Court's Associate Justices -- or from outside the Court. Each option may present the President with different considerations, attractions and drawbacks.
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.(88) Instead of selecting a Chief Justice nominee from outside the Court, and having only one appointment opportunity, a President, taking the Associate Justice option, could potentially, through carefully screening of nominee 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 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.
The one Supreme Court Justice not to receive Senate confirmation after his recess appointment was a Chief Justice appointee -- John Rutledge of South Carolina. Rutledge was one of 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's supreme court. Rutledge then returned to the national scene when President Washington recess appointed 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 made a 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 lifetime appointment as Chief Justice.
On October 2, 1953, 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 1953 term, the new Chief Justice was sworn into office. On January 11, 1954, 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, 1954 by voice vote.
Since the late 1960s, 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. For a detailed discussion of the Committee's pre-hearing stage, see CRS Report RL31989, Supreme Court Appointment Process, pp. 20-22.
In 1954, two days of hearing were held on the nomination of Earl Warren to be Chief Justice.(107) The hearings were scheduled in part to allow several relatively unknown persons from California an opportunity to state for the record why they opposed the California governor's appointment to the Court.(108) The nominee, however, did not appear to testify on his own behalf and was not invited by the committee to do so.
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.
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.
After the Judiciary Committee has reported a nomination, it is assigned an executive calendar number by the executive clerk of the Senate.(117) Consideration of the nomination is then scheduled by the Senate majority leader, usually in consultation with the minority leader.
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.(118) In their floor remarks, some Senators may cite a nominee's professional qualifications or character as the key criterion, others may stress the importance of the nominee's judicial philosophy or views on constitutional issues, while still others may indicate that they are influenced in varying degrees by all of these criteria. 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.
Voting on Both a Chief Justice and an Associate Justice Nomination. 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 1986, Abe Fortas in 1968, Harlan F. Stone in 1941, and Edward D. White in 1910. In a fifth, much earlier episode, another Associate Justice, William Cushing in 1796, 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.
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 on June 24. On the same day, September 17, the Senate considered and voted to confirm Rehnquist and then considered and voted to confirm Scalia.(122) Prior to these Senate actions, the Senate Judiciary Committee held confirmation hearings first on Rehnquist, and then on Scalia, before favorably reporting both nominations to the Senate on the same day.
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. Johnson. On June 26, 1968, President Johnson nominated both Associate Justice Abe Fortas to be Chief Justice and federal appellate court judge Homer Thornberry to be Associate Justice. 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.(123) Subsequently, the Senate rejected a motion to close debate on a motion to proceed to consider the Fortas nomination, after which the Fortas and Thornberry nominations were both withdrawn by the President (the latter having advanced in committee only through the hearings stage).
In another two-appointment episode, however, the Senate acted on the Associate Justice nomination before the Chief Justice nomination. On June 12, 1941, President Franklin Delano Roosevelt 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 of dispensing with confirmation hearings for a fellow Member,(124) 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. Following his confirmation as Chief Justice on June 27, Justice Stone stepped down as Associate Justice on July 2 and took his judicial oath as Chief Justice on July 3, after which Associate Justice Byrnes was sworn in on July 8.
William Howard Taft was the first President to use a Chief Justice vacancy to make two Court appointments. On December 12, 1910, he sent to the Senate the nominations of both Associate Justice Edward D. White to be Chief Justice and of Willis Van Devanter to fill the position to be vacated by Justice White. In recognition of Justice White's service in the Senate prior to his appointment to the Court in 1894, 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.
Voice Votes, Roll Calls, and Vote Margins. 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?" A vote to confirm requires a simple majority of Senators present and voting.
A cloture motion to end debate on a Court nomination occurred again in 1971, when the Senate considered the nomination of William H. Rehnquist to be an Associate Justice. Although the cloture motion failed by a 52-42 vote,(139) Rehnquist subsequently was confirmed. In 1986, a motion was filed to close debate on a third Supreme Court nomination, this time of sitting Justice Rehnquist to be Chief Justice. Supporters of the nomination mustered more than the three-fifths majority needed to close debate (with the Senate voting for cloture 68-31),(140) and Justice Rehnquist subsequently was confirmed as Chief Justice.
Judge Roberts had been nominated by President Bush earlier, on July 29, 2005, to succeed retiring Associate Justice Sandra Day O'Connor.(147) Five weeks later, the pre-hearings phase for that nomination was approaching its end,(148) with the Senate Judiciary Committee set to begin confirmation hearings for Judge Roberts on September 6, the first day of the Senate's return from its August recess.
Indeed, the very morning on which the above news report appeared, President Bush would announce his selection of Judge Roberts to be Chief Justice. In doing so, the President also emphasized that, from his perspective, the Senate was "well along in the process of considering Judge Roberts' qualifications."(150) The next day, September 6, 2005, the Chairman of the Judiciary Committee, the committee's Ranking Democratic Member, and Senate leaders announced a 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 Judiciary Committee on September 12, 13, 14 and 15,(151) and on September 22, the Judiciary Committee approved the Roberts nomination by a vote of 13-5, with three Democrats on the committee joining all 10 Republicans 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 Justice according to their own criteria and concerns. In large part, their concerns will mirror the traditional concerns of Presidents with professional excellence, character, and leadership qualities in a Chief Justice nominee. Some Senators, however, also will be concerned with the nominee's judicial philosophy or views on constitutional issues and how, in their view, the appointment might affect the 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 prove controversial, a filibuster against the nomination would be a possibility, unless Senate rules were modified to curtail the use of filibusters against judicial nominees. Under current Senate rules, the nomination would fall short of confirmation if, in the event of a filibuster, three-fifths of the Senate's full membership failed to vote in favor of closing debate. As also noted earlier, an agreement reached on May 23, 2005, by a coalition of seven Democratic and seven Republican Senators averted what until then had seemed an imminent confrontation between the two parties over judicial filibusters. As part of that agreement, the coalition's Democratic Senators pledged not to lend their support to filibusters against judicial nominations except under "extraordinary circumstances." In the immediate aftermath of the Judiciary Committee's 13-5 approval of Judge Roberts on September 22, 2005, there were no reports of plans to filibuster by any Senators who had announced opposition to the Roberts nomination.
If and when the Senate votes to close debate on the Chief Justice nomination, the next and ultimate test for appointment will be the Senate vote on whether to confirm. A vote to confirm would require a simple majority of Senators present and voting. If the vote of the majority is to confirm, the confirmed nominee would then receive a commission from the President, officially appointing him to the Court. After receiving his commission, Judge Roberts would be sworn into office, becoming the 17th Chief Justice of the United States.
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 of America (various volumes); The Supreme Court of the United States (an undated pamphlet published by the United States Supreme Court); and Maeva Marcus and James R. Perry, editors, The Documentary History of the Supreme Court of the United States, 1789-1800 (New York: Columbia University Press, 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.
1. (back) Three of the Chief Justices each served more than 20 years -- John Marshall, 34 years (from 1801 to 1935), Roger Brooke Taney, 28½ years (from 1836 to 1864), and Melville Fuller, 22 years (from 1888 to 1910).
2. (back) Already an Associate Justice at the time, William H. Rehnquist was nominated to be Chief Justice on July 20, 1986, was confirmed by the Senate on Sept. 17, 1986, and took his judicial oath as Chief Justice nine days later. After taking his oath of office as an Associate Justice on Jan. 7, 1972, Rehnquist served on the Court for almost 34 years.
3. (back) Justice O'Connor, in a July 1, 2005 letter, informed President George W. Bush of her decision to retire from the Court "effective upon the nomination and confirmation of my successor." Sandra Day O'Connor, letter to President George W. Bush, July 1, 2005, available at http://www.supremecourtus.gov/publicinfo/press/pr_07-01-05.html.
4. (back) President Bush's announcement of his intention to nominate Judge Roberts to be Chief Justice came on Sept. 5, 2005. The next day, the actual nomination document was signed and sent to the Senate, and the nomination of Judge Roberts to be Associate Justice was withdrawn . See "President Nominates Judge Roberts to be Supreme Court Chief Justice," Sept. 5, 2005 White House News release, including text of the nomination announcement, available at http://www.whitehouse.gov/news/releases/2005/09/print/20050905.html.
5. (back) Only three Chief Justices were 50 years of age or younger when they were sworn into office: John Jay, who was 44 when he became the nation's first Chief Justice in 1789; Oliver Ellsworth, who was 50 upon becoming the third Chief Justice in 1796; and John Marshall, who was 45 when he became the fourth Chief Justice in 1801. When Ellsworth took his judicial oath of office on March 8, 1796, he was less than two months away from his 51st birthday. Hence, if confirmed by the Senate and sworn into office before mid-November 2005, Judge Roberts, who was born on Jan. 27, 1955, would become the third youngest person ever to serve as Chief Justice.
6. (back) See, for example, Sen. Patrick J. Leahy, remarks in the Senate, Congressional Record, daily ed., vol. 150, Nov. 20, 2004, pp. S11830-S11832.
7. (back) See, for example, speech by Sen. William H. Frist delivered on Nov. 11, 2004, to the Federalist Society, in Congressional Record, daily ed., vol. 150, Nov. 24, 2004, pp. S11848-S11849. See also the historic debate of almost 40 consecutive hours between Senate Republicans and Senate Democrats (from evening of Nov. 12 to the morning of Nov. 14, 2003) on the propriety of filibusters against judicial nominations, and on related judicial nominations issues, in Congressional Record, daily ed., vol. 149, Nov. 12, 2003, pp. S14528-S14790.
8. (back) A journalist covering the Supreme Court in 2001 noted that announcements by the Court of 5-4 decisions had "become routine, a familiar reminder of how much the next appointment to the court will matter." Linda Greenhouse, "Divided They Stand: The High Court and the Triumph of Discord," New York Times, July 15, 2001, section 4, p. 1.
9. (back) Subsequently, the number of Associate Justice seats on the Court has been increased or decreased legislatively by Congress on five separate occasions. From 1869 to the present, though, the number of Justice seats on the Court has been fixed at nine.
10. (back) David G. Savage, Guide to the U.S. Supreme Court, 4th ed., vol. 2 (Washington: CQ Press, 2004), pp. 867-869.
11. (back) See John J. Patrick, The Supreme Court of the United States: A Student Companion, 2nd ed. (New York: Oxford University Press, 2001), p. 70.
12. (back) Since the mid-1970s, the Supreme Court Clerk's records have been computerized. In April 2000, the Supreme Court's website, at http://www.supremecourtus.gov, brought the Court into the age of electronic information. Attendant to these technological advances are administrative and budgetary demands, as well as heightened expectations that extensive and timely Court-related information will be accessible to the public. Among the 400 people who work in the Supreme Court building are the key officers who carry out the Court's statutory duties: the Clerk, the Library, the Marshal, and the reporter of Decisions. Visitors and tourists to the Court now exceed one million annually. Since the terrorist attack of Sept. 11, 2001, and the anthrax threat, increased physical security for the Court, its employees, and visitors also has been a concern. Overseeing all of these matters is now an integral part of the Chief Justice's responsibilities. In 1972 Congress authorized the Chief Justice to employ an administrative assistant to perform duties as assigned by the Chief Justice. The Chief is also authorized to have the services of up to four law clerks, three secretaries, a messenger, and a government car and driver.
13. (back) 28 U.S.C. § 331. The Judicial Conference of the United States is the policy-making body for the administration of the federal court system. Theconference comprises the chief judges of the 13 courts of appeals, a district court judge from each of the 12 regional circuits, and the chief judge of the Court of International Trade. For more information, see http://www.uscourts.gov/judconf.html.
14. (back) 28 U.S.C. § 601. The Administrative Office of the United States Courts is the central administrative and budgetary support agency for the federal court system.
15. (back) 28 U.S.C. § 621. The Federal Judicial Center is a support agency for the federal judiciary, which, through research and training programs for judges and judicial personnel, seeks to further improvements in judicial administration.
16. (back) See Associated Press, "Attn.: John Roberts," Washington Post, Sept. 7, 2005, p. A23.
17. (back) U.S.C. § 1803. The Surveillance Court has jurisdiction to hear applications and grant orders for electronic surveillance anywhere within the United States.
18. (back) Available at http://www.uscourts.gov/ttb/jan05ttb/.
19. (back) Typically, the annual report summarizes events of the federal judiciary over the past year (including the work of the Supreme Court, the Federal Judicial Center, the Administrative Office of the United States Courts, and the United States Sentencing Commission). It also highlights legislative developments bearing directly on the federal judiciary and provides statistics on the federal court caseload over the past year.
20. (back) 28 U.S.C. § 42. By statute, a justice may be assigned to more than one circuit, and two or more justices may be assigned to the same circuit. A listing of the Associate Justices' allotment to the circuits, as of September 7, 2005, is available at http://www.supremecourtus.gov/orders/courtorders/090705pzr.pdf.
21. (back) 28 U.S.C. § 291(a).
22. (back) 28 U.S.C. § 294(a). The chief judge or circuit justice of the circuit where the need arises must present a certificate of necessity to the Chief Justice for such designation or assignment to a court of appeals or district court. The statute also explicitly states that, "No such designation or assignment shall be made to the Supreme Court."
23. (back) 20 U.S.C. § 42.
24. (back) 20 U.S.C. § 72.
25. (back) 20 U.S.C. § 76cc.
26. (back) 18 U.S.C.A. prec. § note.
27. (back) 44 U.S.C. § 2501.
28. (back) Technically, the oath of office may be administered by any judge.
29. (back) The 2001 Year-End Report on the Federal Judiciary noted that the Chief Justice led a delegation representing the federal judiciary to Mexico at the invitation of the the President of the Mexican Supreme Court as part of a judicial exchange (a follow-up to a similar visit by a Mexican delegation to Washington in 1999). In 2001, more than 800 representatives from over 40 federal judicial systems around the world visited the Supreme Court to learn about the American judicial system.
30. (back) 28 U.S.C. § 3.
31. (back) William H. Rehnquist, Remarks of The Chief Justice on My Life in the Law Series, Duke University School of Law, April 13, 2002, available at http://www.supremecourtus.gov/publicinfo/speeches/sp_04-14-03.html. In Latin, primus means "first" and pares means "equals."
32. (back) There are no constitutional provisions setting forth professional qualifications for federal judges in general, nor do any statutes set forth professional qualifications for federal judges with lifetime appointments. (Judges with lifetime appointments include the Supreme Court's Justices and judges on the U.S. district courts, the U.S. courts of appeals, and the U.S. Court of International Trade). "The very few statutory professional prerequisites apply only to nominees to federal courts whose judges are not constitutionally entitled to 'good Behaviour' [i.e., lifetime] tenure." CRS Report 95-404A, Professional Qualifications for Appointment to the Federal Judiciary, by P. L. Morgan (archived; available from D. Steven Rutkus).
33. (back) For discussion of the past role of the ABA Standing Committee in evaluating and rating the qualifications of Supreme Court nominees for the benefit of Presidents and the Senate Judiciary Committee, see CRS Report RL31989, Supreme Court Appointment Process: Roles of the President, Judiciary Committee, and Senate, pp. 12-13, 20-22. See also CRS Report 96-446, The American Bar Association's Standing Committee on Federal Judiciary: A Historical Overview, by [author name scrubbed] (archived; available from the author).
34. (back) The ABA Standing Committee on Federal Judiciary: What It Is and How It Works, American Bar Association, available at http://www.abanet.org/scfedjud/backgrounder.html.
35. (back) Ibid. The criterion of integrity, the committee booklet explains, concerns "the nominee's character and general reputation in the legal community," as well as "his or her industry and diligence." Judicial temperament involves "the prospective nominee's compassion, decisiveness, open-mindedness, courtesy, patience, freedom from bias, and commitment to equal justice under the law."
37. (back) Only four Associate Justices were, at the time they were serving on the Court, nominated to be Chief Justice -- Edward D. White in 1910, Harlan Fiske Stone in 1941, Abe Fortas in 1968, and William H. Rehnquist in 1986. (White, Stone, and Rehnquist received Senate confirmation to be Chief Justice, but Fortas did not.) Two others appointed to be Chief Justice, John Rutledge in 1795 and Charles Evans Hughes in 1930, had earlier served as Associate Justices, but were not serving on the Court at the time of their Chief Justice appointments.
38. (back) John Paul Frank, Marble Palace; the Supreme Court in American Life (Westport, CT: Greenwood Press,1972), pp. 78-79.
39. (back) Charles Evans Hughes, The Supreme Court of the United States (New York: Columbia University Press, 1928), p. 57.
40. (back) Frankfurter, quoted by James Reston, in "Choice of New Chief Justice Could Hinge on Many Tests," New York Times, Sept. 10, 1953, p. 20.
41. (back) See also CRS General Distribution Memorandum, Criteria Used by Senators to Evaluate Judicial Nominations, by [author name scrubbed] (available from the author), for a discussion of the wide range of criteria that Senators have been understood to use in deciding whether to vote to confirm nominees for federal judgeships.
42. (back) For a more complete review of each stage of the Supreme Court appointment process, as its applies to Associate Justice as well as Chief Justice nominees, see CRS Report RL31989, Supreme Court Appointment Process: Roles of the President, Judiciary Committee, and Senate, by [author name scrubbed].
43. (back) An incoming Justice takes two oaths of office -- a judicial oath, as required by the Judiciary Act of 1789, and a constitutional oath, which, as required by Article VI of the U.S. Constitution, is administered to Members of Congress and all executive and judicial officers. In 1986, both oaths of office were administered to incoming Chief Justice William H. Rehnquist by retiring Chief Justice Warren E. Burger -- the constitutional oath at the White House, the judicial oath at the Supreme Court. In 1969 both oaths were administered at the Supreme Court to incoming Chief Justice Burger by retiring Chief Justice Earl Warren. In 1953, both oaths were administered to incoming Chief Justice Warren at the Supreme Court -- the constitutional oath by the senior Associate Justice in point of service, Hugo L. Black, and the judicial oath by the Clerk of the Court, Harold B. Willey. See Ruth Marcus, "Rehnquist, Scalia Take Their Oaths," Washington Post, Sept. 27, 1986, p. A14; "Burger is Sworn as Chief Justice," New York Times, June 24, 1969, p. 1; and "Warren Takes Place on Bench as High Court Meets Today," Washington Post, Oct. 5, 1953, p. 1.
44. (back) See Table 1 at end of this report, which lists the names of all past Chief Justice nominees chronologically by the dates of their nominations. The table, among other things, indicates which nominees received Senate confirmation, which had prior service on the Court (either as an Associate Justice or, in one instance, as Chief Justice), and which two declined their appointments after being confirmed.
45. (back) See the 1795 appointment of John Rutledge, in Table 1 at the end of this report.
46. (back) See, in Table 1 at the end of this report, the nominations of George H. Williams in 1873, Caleb Cushing in 1874, and Abe Fortas in 1968.
48. (back) See, at the end of this report, the 1796 nomination of Associate Justice William Cushing to be Chief Justice. For text of Feb. 2, 1796, letter of Justice Cushing to President George Washington, declining the Chief Justice appointment, see Marcus, Documentary History, pp. 103-104.
49. (back) U.S. Constitution, Article III, Section 1.
50. (back) Ibid. Article III, Section 1, provides, in part, that the "judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior courts, shall hold their offices during good Behaviour...." In the present federal court system, the courts established by Congress under Article III, Section 1, whose judgeships entail lifetime appointments, are the U.S. District Courts, the U.S. Courts of Appeals, and the U.S. Court of International Trade.
52. (back) In 1804 the House of Representatives voted to impeach Justice Samuel Chase. The vote to impeach Chase, a staunch Federalist and outspoken critic of Jeffersonian Republican policies, was strictly along party lines. In 1805, after a Senate trial, Chase was acquitted after votes in the Senate fell short of the necessary two-thirds majority on any of the impeachment articles approved by the House. "Chase's impeachment and trial set a precedent of strict construction of the impeachment clause and bolstered the judiciary's claim of independence from political tampering." Elder Witt, ed., Congressional Quarterly's Guide to the U.S. Supreme Court, 2nd ed. (Washington: Congressional Quarterly Inc, 1990), p. 235.
55. (back) The four Chief Justices who retired from the Court were William Howard Taft, Charles Evans Hughes, Earl Warren, and Warren Burger. In a letter to President Herbert Hoover, dated Feb. 3, 1930, Chief Justice Taft stated that he was "desirous of accepting" the retirement benefits accorded to federal judges who had served as judges for at least 10 years and had attained the age of 70, and noted that his resignation was "intended to take effect immediately upon its acceptance by you." U.S. President (Hoover), "Letter Accepting the Resignation of William Howard Taft as Chief Justice of the Supreme Court,"Public Papers of the Presidents of the United States -- Herbert Hoover, 1930 (Washington: GPO, 1976), p. 42.
Citing "considerations of health and age," Chief Justice Charles Evans Hughes in a letter to President Franklin D. Roosevelt, dated June 2, 1941, stated his intention to retire effective July 1, 1941. U.S. President (Roosevelt, F.), "Exchange of Communications Between the President and Chief Justice Charles Evans Hughes on His Retirement. June 2, 1941," The Public Papers and Addresses of Franklin D. Roosevelt, 1941 vol. (New York, Harper & Brothers, 1950), p. 200.
In a June 13, 1968, letter to President Lyndon Johnson, Chief Justice Earl Warren declared his intention to retire as Chief Justice "effective at your pleasure." U.S. President (Johnson, L.), "The President's News Conference of June 26, 1968," Public Papers of the Presidents of the United States -- Lyndon B. Johnson, 1968-69 volume, book 1 (Washington: GPO, 1970), p. 746. Because Warren did not specify a retirement date, the Johnson administration "interpreted it to mean that Warren would wait until a successor was confirmed." Ward, Deciding to Leave, p. 172. In early October 1968, after President Johnson's nomination of Associate Justice Abe Fortas to succeed Warren failed to gain Senate confirmation, Warren informed President Johnson that he would continue serving as Chief until a successor was confirmed. Johnson, for his part, declared he would not submit another Chief Justice nomination before leaving office in January 1969, leaving the Court vacancy to be filled by the person elected President in the November 1968 elections. U.S. President (Johnson, L.), "Statement by the President Upon Declining to Submit an Additional Nomination for the Office of Chief Justice of the United States. October 10, 1968," Public Papers of the Presidents of the United States -- Lyndon B. Johnson, 1968-69 volume, book 1 (Washington: GPO, 1970), p. 1024. After taking office in January 1969, the newly elected President, Richard M. Nixon, "worked out a deal that allowed the Chief to finish out the 1968 Term before stepping down." Ward, Deciding to Leave, p. 174.
In a letter to President Ronald Reagan, released by the White House on June 17, 1986, Chief Justice Burger asked to be relieved as Chief Justice "effective July 10, 1986, or as soon thereafter as my successor is qualified, pursuant to 28 U.S.C. §371(b)." U.S. President (Reagan), "Exchange of Letters on the Resignation of Warren E. Burger as Chief Justice. June 17, 1986," Weekly Compilation of Presidential Documents, vol. 22, June 23, 1986, p. 812.
56. (back) See discussion of the Rutledge recess appointment in later section of this report, under heading "Recess Appointments to the Court."
57. (back) 28 U.S.C. §372(b) addresses situations where U.S. district and U.S. circuit court of appeals judges are eligible to retire because of permanent disability but decline to do so. In these cases, a certificate of disability may be signed by a majority of the members of the Judicial Council of the judge's circuit and presented to the President. If the President finds that the judge is "unable to discharge efficiently all the duties of his office by reason of permanent mental or physical disability and that the appointment of an additional judge is necessary for the efficient dispatch of business, the President may make such appointment by and with the advice and consent of the Senate." The President's appointment, in this situation, is not made to a vacated judgeship, but to a newly created judgeship (which temporarily increases by one the number of judges in the district or circuit). The judgeship of the permanently disabled judge becomes vacant only upon his or her death, resignation, or retirement. When that occurs, the statute provides that the vacancy shall not be refilled (causing the number of judgeships in the district or circuit to be reduced by one, reverting to the number of judgeships permanently authorized for the district or circuit).
58. (back) 28 U.S.C. §372 (a) provides that a Justice or lower federal court judge with lifetime tenure "who becomes permanently disabled from performing his duties may retire from regular active service," by certifying this disability to the President in writing. The Justice or judge who retires under this section, after 10 years of service, receives during the remainder of his or her lifetime the office's full salary, or one-half the salary of the office if having served less than 10 years.
59. (back) Robert S. Greenberger, "On High Court, No Law Governs Quitting Time," Wall Street Journal, Dec. 28, 2004, p. A4.
62. (back) While the "desire to appoint justices sympathetic to their own ideological and policy views may drive most presidents in selecting judges," the field of potentially acceptable nominees for most presidents, according to Watson and Stookey, is narrowed down by at least five "subsidiary motivations" -- (1) rewarding personal or political support, (2) representing certain interests, (3) cultivating political support, (4) ensuring a safe nominee, and (5) picking the most qualified nominee. Watson and Stookey, Shaping America, p. 59.
63. (back) One of the "unwritten codes," two scholars on the judiciary have written, "is that a judicial appointment is different from run-of-the-mill patronage. Thus, although the political rules may allow a president to reward an old ally with a seat on the bench, even here tradition has created an expectation that the would-be judge have some reputation for professional competence, the more so as the judgeship in question goes from the trial court to the appeals court to the Supreme Court level." Robert A. Carp and Ronald A. Stidham, Judicial Process in America, 3rd ed. (Washington: CQ Press, 1996), pp. 240-241.
64. (back) President Gerald R. Ford, for example, said he believed his nominee, U.S. appellate court judge John Paul Stevens, "to be best qualified to serve as an Associate Justice of the Supreme Court." U.S. President (Ford), "Remarks Announcing Intention to Nominate John Paul Stevens to Be an Associate Justice of the Supreme Court, November 28, 1975," Public Papers of the Presidents of the United States; Gerald R. Ford; 1975, Book II (Washington: GPO, 1977), p. 1917. Similarly, in 1991, President George H. W. Bush said of nominee Clarence Thomas, "I believe he'll be a great justice. He is the best person for this position." U.S. President (Bush, George H. W.), "The President's News Conference in Kennebunkport, Maine, July 1, 1991," Public Papers of the President of the United States; George Bush; 1991, Book II (Washington: GPO, 1992), p. 801.
65. (back) In Federalist Paper 78 ("Judges as Guardians of the Constitution"), Hamilton extolled the "benefits of the integrity and moderation of the Judiciary," which, he said, commanded "the esteem and applause of all the virtuous and disinterested." Further, he maintained, there could "be but few men" in society who would "unite the requisite integrity with the requisite knowledge" to "qualify them for the stations of judges." Wright, The Federalist, pp. 495 (first quote) and 496 (second quote).
66. (back) James Reston, "Choice of New Chief Justice Could Hinge on Many Tests," New York Times, Sept. 10, 1953, p. 20.
68. (back) Abraham, Justices, Presidents, and Senators, p. 192.
69. (back) In his memoirs, President Eisenhower recounted that, a few months prior to the death of Chief Justice Vinson, he had talked to Governor Warren "about his basic philosophy and been quite pleased that his views seemed to reflect high ideals and a great deal of common sense. During this conversation I told the Governor that I was considering the possibility of appointing him to the Supreme Court and I was definitely inclined to do so if, in the future, a vacancy should occur." Dwight D. Eisenhower, The White House Years, 2 vols. (Garden City, NY: Doubleday & Company, Inc., 1963-65), vol. 1, p. 228.
70. (back) Ibid., p. 227.
71. (back) Ibid., pp. 226-227.
72. (back) Ibid., p. 226.
73. (back) Ibid., p. 227.
74. (back) Ibid., pp. 227-228.
75. (back) Ibid., p. 230.
76. (back) Immediately prior to their appointments to the Court, John M. Harlan (1955), Charles E. Whittaker (1957) and Potter Stewart (1958) had been U.S. circuit court of appeals judges, and William J. Brennan (1956) had been a state supreme court justice.
77. (back) "To a certain extent, presidents have always looked to the Senate for recommendations and subsequently relied on a nominee's backers there to help move the nomination through the Senate." Watson and Stookey, Shaping America, p. 78.
78. (back) President William Clinton's search for a successor to retiring Justice Harry A. Blackmun, during the spring of 1994, is illustrative of a President seeking and receiving Senate advice. According to one report, the President, as he came close to a decision after holding his options "close to the vest" for more than a month, "began for the first time to consult with leading senators about his top candidates for the Court seat and solicited advice about prospects for easy confirmation." The advice he received included "sharp Republican opposition to one of his leading choices, Interior Secretary Bruce Babbitt." Gwen Ifill, "Clinton Again Puts Off Decision on Nominee for Court," The New York Times, May 11, 1994, p. A16.
79. (back) "Numerous instances of the application of senatorial courtesy are on record, with the practice at least partially accounting for rejection of several nominations to the Supreme Court." Abraham, Justices, Presidents and Senators, pp. 19-20. Senatorial courtesy, Abraham writes, appeared to have been the sole factor in President Grover Cleveland's unsuccessful nominations of William B. Hornblower (1893) and Wheeler H. Peckham (1894), both of New York. Each was rejected by the Senate after Senator David B. Hill (D-NY) invoked senatorial courtesy.
80. (back) The President explained that "we did not inform or clear with either the Minnesota or Virginia Senator. They knew nothing about it and we will not do that with any others." U.S. President (Nixon), "Remarks Announcing the Nomination of Judge Warren Earl Burger To Be Chief Justice of the United States. May 21, 1969," Public Papers of the Presidents of the United States, 1969 vol. (Washington, GPO, 1971), p. 391. The President's decision not to inform the home-state Senators of his choice of Burger may have, to some degree, been influenced by the Senators' party affiliation: All four Senators in this case were Democrats. If any of the home-state Senators had been Republicans, President Nixon might well have, at the very least, advised them of his choice beforehand -- rather than risk the embarrassment to them which might come if they were shown to be totally excluded from the selection process.
81. (back) Ibid., p. 393.
82. (back) See, for example, John Ferling, "The Senate and Federal Judges: The Intent of the Founding Fathers," Capitol Studies, vol. 2, winter 1974, p. 66: "Since the convention acted at a time when nearly every state constitution, and the Articles of Confederation, permitted a legislative voice in the selection of judges, it is inconceivable that the delegates could have intended something less than full Senate participation in the appointment process."
83. (back) See, for example, Harris, Advice and Consent, p. 34: "The debates in the Convention do not support the thesis since advanced that the framers of the Constitution intended that the President should secure the advice -- that is, the recommendations -- of the Senate or of individual members, before making a nomination."
84. (back) Michael J. Gerhardt, The Federal Appointments Process (Durham, NC: Duke University Press, 2000), p. 33. The Constitution, Gerhardt adds, "does not mandate any formal prenomination role for the Senate to consult with the president; nor does it impose any obligation on the president to consult with the Senate prior to nominating people to confirmable posts. The Constitution does, however, make it clear that the president or his nominees may have to pay a price if he ignores the Senate's advice." Ibid.
85. (back) "Sen. Specter Holds News Conference on Chairmanship of Judiciary Committee," Feb. 24, 2005, CQ Transcript Service, at http://www.cq.com.
86. (back) The term "elevation" in the judicial appointment process also is used to describe the appointment of a lower federal court appointment to a higher judicial position, such as when a U.S. district judge is nominated to be a U.S. court of appeals judge, or when a court of appeals judge is nominated to be a Justice on the Supreme Court.
87. (back) As discussed earlier, the five nominations of sitting Associate Justices to be Chief Justice were: (1) President George Washington's nomination of Justice William Cushing in 1796, (2) President William Howard Taft's nomination of Justice Edward D. White in 1910, (3) President Franklin D. Roosevelt's nomination of Justice Harlan Fiske Stone in 1941, (4) President Lyndon B. Johnson's nomination of Justice Abe Fortas in 1968, and (5) President Ronald Reagan's nomination of Justice William H. Rehnquist in 1986. White, Stone and Rehnquist were confirmed by the Senate and assumed the office of Chief Justice. While Cushing was confirmed as well, he declined the appointment. Fortas failed to receive Senate confirmation. See Table 1 at end of this report.
89. (back) For its part, however, the Senate is not precluded from confirming the Associate Justice nomination prior to confirming the Chief Justice nomination. In such an event, the confirmed Associate Justice nominee cannot not assume office until after the Chief Justice nominee has vacated the Associate Justice office -- presumably doing so only after having received Senate confirmation. There has been one instance in which such a scenario occurred, involving the June 12, 1941 nominations of Associate Justice Harlan F. Stone to be Chief Justice and of Senator James F. Byrnes of South Carolina to be Associate Justice. The Byrnes nomination was confirmed by the Senate the same day it was received, on June 12, without being referred to committee, before the Stone nomination was confirmed, on June 27, 1941. However, Justice Byrnes took the judicial oath of office, on July 8, 1941, only after Chief Justice Stone took his judicial oath, on July 3, 1941.
91. (back) Such a consideration concerned President Harry S Truman following the death of Chief Justice Harlan F. Stone on Apr. 22, 1946. At the time, the Court was experiencing an internal feud between Associate Justices Hugo L. Black and Robert H. Jackson, "with the latter publicly accusing the former of blocking his ascendance to the top spot on the Court ...." Abraham, Justices, Presidents, and Senators, p. 183. President Truman "quickly perceived that, for the sake of intra-Court comity, he simply could not promote any of the Court's sitting members...." At the advice of retired Chief Justice Charles Evans Hughes and retired Associate Justice Owen Roberts, the President nominated the Secretary of the Treasury, Fred M. Vinson, to be Chief Justice. Vinson "seemed ideal for the position, given his demonstrated administrative and legislative leadership -- he was one of the very few members of the bench to have served in all three branches of the federal government." Ibid.
92. (back) U.S. President (Nixon), "Remarks Announcing the Nomination of Judge Warren Earl Burger To Be Chief Justice of the United States. May 21, 1969," Public Papers of the Presidents of the United States, 1969 vol. (Washington, GPO, 1971), p. 394.
93. (back) Cummings, Split Decision, p. A4.
94. (back) [author name scrubbed], "The Law: Recess Appointments to Article III Courts," Political Science Quarterly, vol. 34, September 2004, p. 661.
95. (back) Specifically, Article II, Section 2, Clause 3 of the U.S. Constitution empowers the President "to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session."
96. (back) See "Recess Appointments to the Supreme Court -- Constitutional But Unwise?" Stanford Law Review, vol. 10, December 1957, pp. 124-146, especially, p. 125, for table of first 11 recess appointments to the Court, including appointment dates and later Senate confirmation dates. The article was published prior to the twelfth recess appointment, President Eisenhower's recess appointment of Potter Stewart as Associate Justice on Oct. 7, 1958. Stewart subsequently received Senate confirmation to that position.
98. (back) See George S. McCowan, Jr., "Chief Justice John Rutledge and the Jay Treaty," South Carolina Historical Magazine, vol. 62, January 1961, pp. 10-23. In first paragraph, the author writes, "The purpose of this article is to trace the chain of events by which the question of the appointment of John Rutledge as Chief Justice became inextricably tied to the question of the ratification of the Jay Treaty."
99. (back) U.S. Congress, Senate, Journal of the Executive Proceedings of the Senate, Washington: Duff Green, 1828), vol. 1, pp. 195-196.
100. (back) Maeva Marcus et al., eds., The Documentary History of the Supreme Court of the United States, 1789-1800, vol. 1, part 1 ("Appointments and Proceedings") (New York: Columbia University Press, 1985), p. 100.
102. (back) Congressional Directory, p. 512.
103. (back) James Reston, "U.S. Mourns Vinson; Delicate Balance of Court at Stake," New York Times, Sept. 9, 1953, p. 1.
104. (back) At first, after the creation of the Judiciary Committee in 1816, the Senate referred nominations to the Committee by motion only. As a result, until after the Civil War, no more than perhaps one out of three Supreme Court nominations was sent to the Judiciary Committee for initial consideration. In 1868, however, the Senate determined that all nominations should be referred to appropriate standing committees. Subsequently up to the present day, almost all Supreme Court nominations have been referred to the Judiciary Committee. U.S. Congress, Senate Committee on the Judiciary, History of the Committee on the Judiciary, United States Senate, 1816-1981. Senate Document No. 97-18, 97th Congress., 1st sess. (Washington: GPO, 1982), p. iv. After 1868, however, an important exception to the practice of referring Supreme Court nominees to the Judiciary Committee usually was made for nominees who, at the time of their nomination, were current or former Members of the U.S. Senate. CRS Report RL31989, Supreme Court Appointment Process: Roles of the President, Judiciary Committee, and Senate. Another nomination not referred to the Judiciary Committee was President Warren G. Harding's nomination of former President William Howard Taft to be Chief Justice, which was received by the Senate on June 30, 1921, and confirmed the same day. See "Ex-President Taft Succeeds White as Chief Justice," New York Times, July 1, 1921, p. 1.
106. (back) See James A. Thorpe, "The Appearance of Supreme Court Nominees Before the Senate Judiciary Committee," Journal of Public Law, vol. 18, 1969, pp. 371-384. (Hereafter cited as Thorpe, "Appearance of Nominees.") See also David Gregg Farrelly, "Operational Aspects of the Senate Judiciary Committee," (Ph.D. diss., Princeton University, 1949), pp. 184-199, in which author examines the procedures followed by the committee in its consideration of 15 Supreme Court nominations referred to it between 1923 and 1947. The author observes, on p. 192, that six of the 15 nominations were "confirmed without benefit of public hearings. Of the remaining nine nominations, full public hearings were used on two occasions, another appointee received a limited hearing, and six were given routine hearings. Only [John J.] Parker and [Felix] Frankfurter received full, open hearings." A "routine hearing," the author explained, on pp. 194-195, "differs from a full, open hearing in that a date is set for interested parties to appear and present evidence against confirmation. In other words, a meeting is scheduled without requests for one; an open invitation is extended by the committee for the filing of protests against an appointment." In 1930, although Supreme Court nominee John J. Parker had communicated his willingness to testify, the Judiciary Committee voted against inviting him to do so. "Committee, 10 to 6, Rejects Parker," The New York Times, April 22, 1930, pp. 1, 23.
107. (back) See transcripts of Feb. 2 and 19, 1954 hearings on nomination of Earl Warren to be Chief Justice, in Mersky and Jacobstein, Supreme Court Nominations: Hearings and Reports, vol. 5.
108. (back) See "Senators Consider Warren Nomination," New York Times, Feb. 3, 1954, p. 16; "Deadline Set for Warren Critics to File," Washington Post, Feb. 16, 1954; and "Unsworn Charges Against Warren Stir Senate Clash," New York Times, Feb. 20, 1954, p. 1.
109. (back) Thorpe, "Appearance of Nominees," pp. 384-402.
110. (back) Congressional Quarterly Almanac 90th Congress 2nd Session ... 1968, vol. 24 (Washington: Congressional Quarterly Service, 1968), p. 532.
111. (back) Supreme Court confirmation hearings were opened to gavel-to-gavel television coverage for the first time in 1981, when the committee instituted the practice at the confirmation hearings for nominee Sandra Day O'Connor. CRS Report RL31989, Supreme Court Appointment Process: Roles of the President, Judiciary Committee, and Senate.
112. (back) CRS Report RL31989, Supreme Court Appointment Process: Roles of the President, Judiciary Committee, and Senate. This committee tradition was reaffirmed by the committee's chairman, Sen. Patrick J. Leahy (D-VT), and its ranking minority member, Sen. Orrin G. Hatch (R-UT), in a June 29, 2001 letter to Senate colleagues. The committee's "traditional practice," the letter said, was to report Supreme Court nominees to the Senate, even in cases where the nominees were opposed by a majority of the Judiciary Committee. "We both recognize and have every intention," their letter continued, "of following the practices and precedents of the committee and the Senate when considering Supreme Court nominees." Sen. Patrick J. Leahy and Sen. Orrin G. Hatch, "Dear Colleague" letter, June 29, 2001, Congressional Record, daily ed., vol. 147, June 29, 2001, p. S7282.
113. (back) CRS Report RL31989, Supreme Court Appointment Process: Roles of the President, Judiciary Committee, and Senate.
114. (back) See CRS Report RL32013, The History of the Blue Slip in the Senate Committee on the Judiciary, 1917-Present.
115. (back) U.S. Congress, Senate Committee on the Judiciary, Nomination of William H. Rehnquist To Be Chief Justice of the United States, 99th Cong., 2nd sess., Exec. Rept. 99-18 (Washington: GPO, 1986), p.1.
116. (back) "The Supreme Court of the United States," debate in the Senate, Congressional Record, vol. 115, June 9, 1969, pp. 15174-15175 and 15192-15194. Shortly after this discussion, the Senate concluded debate and voted to confirm the Burger nomination, 74-3. Subsequent to the Burger nomination in 1969, the Judiciary Committee has reported a Supreme Court nomination to the Senate only once without a written report, doing so in December 1975, when it reported favor the nomination of John Paul Stevens to the Court. The absence of a written committee report was not mentioned during very brief Senate consideration of the Sevens nomination, which ended in a 98-0 confirmation vote.
117. (back) As with other nominations listed in the Executive Calendar, information about a Supreme court nomination will include the name and office of the nominee, the name of the previous holder of the office, and whether the committee reported the nomination favorably, unfavorably, or without recommendation. Business on the Executive Calendar, which consists of treaties and nominations, is considered in executive session. Unless voted otherwise by the Senate, executive sessions are open to the public.
118. (back) See CRS General Distribution Memorandum, Criteria Used by Senators To Evaluate Judicial Nominations, by [author name scrubbed], June 14, 2002, 23 p. (available from author).
119. (back) Sen. Joseph R. Biden, Jr., "Nomination of William H. Rehnquist To Be Chief Justice of the Untied States," debate in the Senate, Congressional Record, daily ed., vol. 132, Sept. 11, 1986, p. S12381.
121. (back) Sen. Orrin G. Hatch, "Nomination of William H. Rehnquist To Be Chief Justice of the Untied States," debate in the Senate, Congressional Record, daily ed., vol. 132, Sept. 11, 1986, p. S12384.
122. (back) See Congressional Record, vol. 132, Sept. 17, 1986, pp. 23729-23803 (debate and vote to confirm Rehnquist) and pp. 23803-23813 (debate and vote to confirm Scalia).
123. (back) "It was clear that the committee would take no action on Thornberry until the Fortas nomination was settled." Robert Shogan, A Question of Judgment: The Fortas Case and the Struggle for the Supreme Court (Indianapolis: The Bobbs-Merrill Company, 1972), p. 172.
124. (back) Byrnes benefitted from "the unwritten rule of the all but automatic approval of senatorial colleagues." Abraham, Justices, Presidents, and Senators, p. 33.
125. (back) Immediately prior to the Senate's roll-call vote in 1994 on whether to confirm Stephen G. Breyer to be an Associate Justice, Majority Leader George J. Mitchell (D-ME), stated to his colleagues on the floor that "it has been the practice that votes on Supreme Court nominations are made from the Senator's desk. I ask that Senators cast their votes from their desks during this vote." Congressional Record, vol. 140, July 29, 1994, p. 18704.
126. (back) The most recent voice votes on Supreme Court nominations were those by the Senate confirming the Associate Justice nominations of Abe Fortas in 1965 and Arthur J. Goldberg and Byron R. White, both in 1962.
127. (back) See Table 1 at end of this report.
128. (back) See, in Table 1 at end of this report, the Chief Justice nominations of George H. Williams in 1873, Caleb Cushing in 1874 and Abe Fortas in 1968. For more complete details on the procedural actions taken on each prior to their withdrawal by the President (including committee hearings dates, committee votes and recommendations, and dates of Senate debate), see CRS Report RL31171, Supreme Court Nominations Not Confirmed, 1789-2004, by [author name scrubbed], pp. 18-23. For short narrative histories on these unsuccessful nominations, see J. Myron Jacobstein and Roy M. Mersky, The Rejected: Sketches of the 26 Men Nominated for the Supreme Court but Not Confirmed by the Senate (Milpitas, CA: Toucan Valley Publications, 1993), pp. 82-87 (Williams), 87-93 (Cushing) and 125-137 (Fortas).
129. (back) Since the 1960s, the closest roll calls on whether to confirm a Supreme Court nomination were the 52-48 vote in 1991 confirming Clarence Thomas; the 45-51 vote in 1970 rejecting G. Harrold Carswell; the 45-55 vote in 1969 rejecting Clement Haynsworth Jr.; the 42-58 vote in 1987 rejecting Robert H. Bork; and the 65-33 vote confirming William H. Rehnquist to be Chief Justice in 1986. The closest roll call vote ever cast on whether to confirm a Supreme Court nomination was the 24-23 vote in 1881 confirming President James A. Garfield's nomination of Stanley Matthews. Two other Senate votes on Supreme Court nominations decided by one vote were procedural votes which effectively defeated the nominations in question -- specifically, a 26-25 vote in 1853 on a motion to postpone consideration of President Millard Fillmore's nomination of George E. Badger and the 25-26 vote in 1861 on a motion to proceed to consider President James Buchanan's nomination of Jeremiah S. Black.
130. (back) Since the 1960s, the most lopsided of these votes have been the unanimous roll calls confirming Harry A. Blackmun in 1970 (94-0), John Paul Stevens in 1975 (98-0), Sandra Day O'Connor in 1981 (99-0), Antonin Scalia in 1986 (98-0), and Anthony M. Kennedy in 1988 (98-0), and the near-unanimous votes confirming Warren E. Burger to be Chief Justice in 1969 (74-3), Lewis F. Powell Jr., in 1971 (89-1), and Ruth Bader Ginsburg in 1993 (96-3).
131. (back) U.S. Congress, Senate, Journal of the Executive Proceedings of the Senate (Washington: GPO, 1887), vol. 4, p. 520 (proceedings of Mar. 14 and 15, 1836).
132. (back) See discussion of Fortas episode in next section of this report, under "Filibusters and Motions To Close Debate."
134. (back) It has only been since 1949, under Senate rules, that cloture could be moved on nominations. Prior to 1949, dating back to the Senate's first adoption of a cloture rule in 1917, cloture motions could be filed only on legislature measures. CRS Report RL32878, Cloture Attempts, p. 2.
135. (back) Prior to 1975, the majority required for cloture was two-thirds of Senators present and voting. Ibid., Cloture Attempts, p. 4.
136. (back) "Supreme Court of the United States," Congressional Record, vol. 114, Oct. 1, 1968, pp. 28926-28933. The 45 votes in favor of cloture fell far short of the super-majority required -- then two-thirds of Senators present and voting.
137. (back) Following his withdrawal of the Fortas nomination, as well as the nomination of Homer Thornberry to succeed Fortas as Associate Justice, President Johnson stated that he "deeply regretted" that "the Senate filibuster prevented the Senate from voting on the nomination of Justice Fortas. Had the Senate been permitted to vote, I am confident that both Justice Fortas and Judge Thornberry would have been confirmed. Their qualifications are indisputable." U.S. President. (Johnson, L.), "Statement by the President Upon Declining To Submit an Additional Nomination for the Office of Chief Justice of the United States. October 10,1968," Public Papers of the Presidents of the United States -- Lyndon B. Johnson, 1968-69 volume, book 1 (Washington: GPO, 1970), p. 1024.
138. (back) Congressional Quarterly Almanac 90th Congress 2nd Session ... 1968, vol. 24 (Washington: Congressional Quarterly Service, 1968), p. 536. See also Ronald J. Ostrow, "Dirksen Shifts on Fortas Filibuster," Los Angeles Times, Sept. 28, 1968, pp. 1, 5 (noting, on p. 1, that the cloture motion filed by 23 Senators sought "to end prolonged debate on a motion merely to consider the nomination."
139. (back) "Cloture Motion," Congressional Record, vol. 117, Dec. 10, 1971, pp. 46110-46117.
140. (back) "Nomination of William H. Rehnquist To Be Chief Justice of the United States," Congressional Record, vol. 132, Sept. 17, 1986, pp. 23729-23739.
141. (back) Senate Republican leaders announced that their move to amend Senate rules to bar filibusters against judicial nominations would occur in conjunction with their efforts to close floor debate on the nomination of Priscilla Owen to be a U.S. circuit court of appeals judge. (An earlier nomination of Owen to the same judgeship, during the 108th Congress, had been filibustered successfully by Senate Democrats four times.) Keith Perine and Daphne Retter, "Judicial Showdown Starts with Owen," CQ Today, vol. 41, May 18, 2005.
142. (back) Charles Babington and Shailagh Murray, "A Last-Minute Deal on Judicial Nominations," The Washington Post, May 24, 2005, pp. A1, A4.
143. (back) Several Senate Democrats, it was reported in 2002, had said "they would consider staging a filibuster if President Bush nominates to the high court a conservative not to their liking." Matthew Tully, "Senators Won't Rule Out Filibuster of High Court Nominees," CQ Daily Monitor, March 21, 2002, p. 7. More recently, in June 2003, another Democratic Senator declared that he would filibuster any Supreme Court nominee that he found objectionable based on certain specified criteria. Adam Nagourney, "Senator Ready To Filibuster over Views of Court Pick," The New York Times, June 21, 2003, p. A13.
144. (back) For analysis of the possible courses of action in which Senate rules might be changed to curtail the use of filibusters against judicial nominations, see CRS Report RL32684, Changing Senate Rules: The 'Constitutional' or 'Nuclear' Option, by [author name scrubbed]. For analysis of whether Senate filibusters of judicial nominations are constitutional, see CRS Report RL32102, Constitutionality of a Senate Filibuster of a Judicial Nomination, by [author name scrubbed].
145. (back) This career, after graduation from Harvard Law School in 1979, included the following professional experience: clerk to a U.S. Court of Appeals judge (1979-1980); clerk to then-Associate Justice William H. Rehnquist (1980-1981); special assistant to Attorney General William French Smith (1981-1982); Associate White House Counsel (1982-1986); associate at the Washington, D.C. law firm of Hogan & Hartson (1986-1989); Principal Deputy Solicitor General (1989-1993); partner at Hogan& Hartson (1993-2003); and judge on the U.S. Court of Appeals for the District of Columbia Circuit (2003-present).
146. (back) See "President Nominates Judge Roberts to be Supreme Court Chief Justice," Sept. 5, 2005 White House News release, including text of the nomination announcement, available at http://www.whitehouse.gov/news/releases/2005/09/print/20050905.html.
147. (back) Justice O'Connor on July 1, 2005, had announced that she would retire effective upon the confirmation of her successor. On July 19, 2005, President Bush announced his selection of John Roberts to succeed Justice O'Connor, formally nominating Judge Roberts 10 days later, on July 29, 2005.
148. (back) During this phase, the nominee had completed and returned a detailed judicial nominee questionnaire to the Senate Judiciary Committee, the American Bar Association's Standing Committee on Federal Judiciary completed its investigation of Judge Roberts and transmitted its rating of the nominee to the Senate Judiciary Committee, the nominee had paid "courtesy call" visits on Capitol Hill to many of the Senate's Members, and the Judiciary Committee's members and staff had studied thousands of pages of background information compiled about the nominee, including memoranda and other papers, newly released by the National Archives, which were written by the nominee while a Department of Justice attorney or White House attorney during the presidential administrations of Ronald Reagan and George H.W. Bush.
149. (back) Peter Baker, "Second Court Vacancy Triggers a Scramble; Bush Considers Picking Roberts as Chief, Officials Say," Washington Post, Sept. 5, 2005, p. A1.
150. (back) See "President Nominates Judge Roberts to be Supreme Court Chief Justice," Sept. 5, 2005 White House News release, including text of the nomination announcement, available at http://www.whitehouse.gov/news/releases/2005/09/print/20050905.html.
151. (back) The first day of hearings began with the committee members' opening statements, followed by statements introducing Judge Roberts to the committee by Senators from the nominee's "home states" of Virginia and Indiana, and concluding with the nominee's opening statement to the committee. All of the second and third days of the hearings, as well part of the final day's morning session, were devoted to questioning of the nominee by the committee's members. During the remainder of the final day of the hearings, lasting until early evening, the committee heard testimony from 31 public witnesses. The first of these witnesses was a representative of the American Bar Association's Standing Committee on Federal Judiciary, who testified regarding the Standing Committee's unanimous finding that Judge Roberts was "well qualified" for appointment to the Court (the committee's highest ranking). Of the 30 other public witnesses, 15 were invited to testify by the committee's Republican majority and 15 by the committee's Democratic minority.
152. (back) Sheryl Gay Stolberg, "Senate Approval Likely as Roberts Clears Panel, 13-5," New York Times, Sept. 23, 2005, p. A1.


text:
Bartoletti, M., I. Castellani, P-M. Deniélou, M. Dezani-ciancaglini, S. Ghilezan, J. Pantović, J. A. Pérez, P. Thiemann, B. Toninho, and H. Torres Vieira, BETTY WG2 State of the art report, , 2014.
Ghilezan, S., S. Jakšić, J. Pantović, J. A. Pérez, and H. Torres Vieira, "Dynamic Role Authorization in Multiparty Conversations", arXiv preprint arXiv:1408.5977, 2014.
Lanese, I., A. Lluch-Lafuente, A. Sokolova, and H. Torres Vieira, "(edited by) Proceedings 7th Interaction and Concurrency Experience, ICE 2014 (Berlin, Germany, 6th June 2014)", Electronic Proceedings in Theoretical Computer Science, vol. 166: Open Publishing Association, 2014.
Lanese, I., A. Lluch Lafuente, A. Sokolova, and H. Torres Vieira, "Proceedings 7th Interaction and Concurrency Experience", arXiv preprint arXiv:1410.7013, 2014.
Lanese, I., A. Lluch Lafuente, A. Sokolova, and H. Torres Vieira, Proceedings of the 7th Interaction and Concurrency Experience (ICE 2014), , 2014.
Padovani, L., V. T. Vasconcelos, and H. Torres Vieira, "Typing liveness in multiparty communicating systems", Coordination Models and Languages: Springer Berlin Heidelberg, pp. 147–162, 2014.
Mariano, P., F. M. V. Ramos, and H. Torres Vieira, FCUL Rally Pro 2013, , 2013.
Baltazar, P., L. Caires, V. T. Vasconcelos, and H. Torres Vieira, "A type system for flexible role assignment in multiparty communicating systems", Trustworthy Global Computing: Springer Berlin Heidelberg, pp. 82–96, 2013.
Vieira, H. Torres, and V. T. Vasconcelos, "Typing progress in communication-centred systems", Coordination Models and Languages: Springer Berlin Heidelberg, pp. 236–250, 2013.
Baltazar, P., L. Caires, V. T. Vasconcelos, and H. Torres Vieira, Dynamic Roles in Multiparty Communicating Systems, : UNL-DI-1–2012, Universidade Nova de Lisboa, 2012.
Baltazar, P., V. T. Vasconcelos, and H. Torres Vieira, Typing dynamic roles in multiparty interaction, , 2011.

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text:
On July 6, 1979, nine undocumented aliens living in New York brought a class action lawsuit in the United States District Court for the Eastern District of New York, challenging their denial of Medicaid benefits on the basis of their alien status. Plaintiffs claimed that Medicaid regulations, 42 C.F.R. ˜ 435.402(b), issued by the Department of Health and Human Services and a companion New York State regulation, 18 NYCRR ˜ 349.3, which called for the denial of all Medicaid benefits on the basis of alienage violated equal protection and due process and were contrary to the language of the Medicaid statute 42 U.S.C. ˜˜ 1396 et seq.. They also claimed that narrower restrictions which denied prenatal care to pregnant aliens and their unborn children were invalid. They sought declaratory and injunctive relief, as well as class certification.
The case languished for years while the parties engaged in pre-trial discovery.
On July 14, 1986, the District Court (Judge Charles P. Sifton) granted summary judgment in favor of the plaintiff class and held that the denial of Medicaid benefits to all aliens who were not admitted for permanent residence or not gpermanently residing under color of lawh (PRUCOL) was not authorized by the Medicaid statute. Lewis v. Gross, 663 F.Supp. 1164 (E.D.N.Y.1986). The defendants moved for reconsideration in light of a new law passed by Congress, the Omnibus Budget Reconciliation Act of 1986 (gOBRAh), which contained new provisions concerning the eligibility of aliens for Medicaid benefits. The Court found that since the language of the challenged regulation, 42 C.F.R. ˜ 435.402(b), appeared verbatim in the new law (OBRA), the Court would not bar enforcement of the regulation in the future. However, the Court refused to preclude relief to aliens who had successfully challenged the regulation prior to passage of statute. Lewis v. Grinker, 660 F.Supp. 169 (E.D.N.Y. 1987).
In response to OBRA, plaintiffs and the City of New York, which joined the case as a plaintiff-intervenor, moved for a preliminary injunction on the grounds that the new law contained an impermissibly narrow definition of the phrase gpermanently residing under color of lawh (PRUCOL) and that the continued denial of Medicaid benefits for prenatal care to pregnant alien women was unlawful. The District Court granted the motion in part, and issued a preliminary injunction barring gthe denial of Medicaid coverage for prenatal care to alien women residing in New York State with a medically verifiable pregnancy if her unborn child would be eligible for Medicaid if born at the time of the application.h Lewis v. Grinker, 1987 WL 8412 (E.D.N.Y. Mar 06, 1987). The Court later made the injunction permanent. Lewis v. Grinker, 794 F.Supp. 1193 (E.D.N.Y. 1991). The defendants appealed and the Second Circuit affirmed, holding that the Medicaid statute as amended by OBRA '86 did not prevent otherwise eligible pregnant women from receiving prenatal care to benefit their future U.S. citizen children. Lewis v. Grinker, 965 F.2d 1206 (2nd Cir.1992).
In a separate order dated April 1, 1991, the District Court granted relief to plaintiffs who were sued by health care providers for unpaid medical bills incurred prior to OBRA-86, which should have been paid by Medicaid. Lewis v. Grinker, 1991 WL 338134 (E.D.N.Y. Apr 01, 1991).
The injunction regarding prenatal care remained in force until 2000, when the government moved to vacate it on the basis of the Welfare Reform Act of 1996 which contained further alien eligibility restrictions for Medicaid. The Act changed the definition of gqualified aliensh eligible for Medicaid to exclude many PRUCOL aliens who were previously eligible for Medicaid under OBRA Œ86. The District Court (Judge Sifton) denied the motion to vacate, finding that the Medicaid alien eligibility restrictions in Section 401(a) of the Welfare Reform Act violated Equal Protection Clause of the Fifth Amendment. Lewis v. Grinker, 111 F.Supp.2d 142 (E.D.N.Y. 2000). The defendants appealed.
The Second Circuit Court of Appeals reversed in part and affirmed in part. The Court (Circuit Judge Newman) held that the Welfare Reform Act's denial of prenatal care to unqualified aliens did not violated equal protection and the part of the injunction ordering prenatal Medicaid assistance to the plaintiff class was therefore reversed. The Court affirmed the part of the injunction which required the government to make automatic eligibility for Medicaid coverage available to the citizen children of the plaintiff class upon their birth. Lewis v. Thompson, 252 F.3d 567 (2nd Cir.2001). On remand, the District Court modified its injunction in accordance with the Second Circuitfs opinion and entered final judgment on June 12, 2002.
As of the date of this summary, there was no further case activity noted on the PACER docket.
Plaintiff Description All aliens residing in New York State under color of law who have applied or attempted to apply for Medicaid but have been or would be denied Medicaid on the basis of their alienage.

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Power to regulate and control alcoholic liquor.
The power to regulate all phases of the control of the manufacture, distribution, sale, and traffic of alcoholic liquor, except as specifically delegated in the Nebraska Liquor Control Act, is vested exclusively in the commission.
Laws 1999, LB 267, § 3.
Nowhere in the statutes relating to the liquor laws is there any requirement that an applicant show need before obtaining a license and the Nebraska Liquor Control Commission cannot do so by rule; therefore, rules 2 and 13, which require such a showing, are invalid. Bond v. Nebraska Liquor Control Comm., 210 Neb. 663, 316 N.W.2d 600 (1982).
The power to regulate liquor business, except as specifically delegated in Chapter 53, R.R.S.1943, is vested exclusively in the Nebraska Liquor Control Commission. J K & J, Inc. v. Nebraska Liquor Control Commission, 194 Neb. 413, 231 N.W.2d 694 (1975).
Nebraska Liquor Control Commission has power to regulate distribution and sale of alcoholic liquors. T & N P Co., Inc. v. Nebraska Liquor Control Commission, 189 Neb. 708, 204 N.W.2d 809 (1973).
Power to regulate all phases of control of manufacture, distribution, sale and traffic in intoxicating liquors is vested exclusively in the Liquor Control Commission. City of Lincoln v. Nebraska Liquor Control Commission, 181 Neb. 277, 147 N.W.2d 803 (1967).
The Liquor Control Commission has the power to regulate all phases of the control of manufacture, distribution, sale, and traffic in intoxicating liquors. State ex rel. Nebraska Beer Wholesalers Assn. v. Young, 153 Neb. 395, 44 N.W.2d 806 (1950).
Liquor Control Commission has power to regulate liquor traffic except as such power is specifically delegated elsewhere. Phelps Inc. v. City of Hastings, 152 Neb. 651, 42 N.W.2d 300 (1950).
The Nebraska Liquor Control Act empowers the Nebraska Liquor Control Commission to issue a license subject to certain restrictions and conditions, including barring a person with a past history of problems controlling the patrons and the establishment, as long as those conditions or restrictions are reasonably necessary to protect the health, safety, and welfare of the people of the State of Nebraska and to promote and foster temperance in the consumption of alcohol. F & T, Inc. v. Nebraska Liquor Control Comm., 7 Neb. App. 973, 587 N.W.2d 700 (1998).
Ordinance of city in conflict with Liquor Control Act was unenforceable. State v. Kubik, 159 Neb. 509, 67 N.W.2d 755 (1954).
Where applicant for license not afforded opportunity to explore an issue material to the license, court should direct a new hearing. 72nd Street Pizza, Inc. v. Nebraska Liquor Control Commission, 199 Neb. 729, 261 N.W.2d 614 (1978).

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§ 118-2 Standard of conduct.
§ 118-3 License requirements; applications; health regulations; exemptions.
§ 118-4 Fingerprinting of applicants; background check.
§ 118-5 License fee; expiration; payments.
§ 118-7 Refusal to issue or renew license; revocation or suspension.
§ 118-11 License application; fee; items submitted.
§ 118-12 Standards of conduct.
§ 118-13 Transfer of license.
§ 118-14 Investigation of applicant.
§ 118-15 Refusal to issue or renew; revocation or suspension.
§ 118-16 Fingerprinting of applicants.
§ 118-20 Hours of operation.
§ 118-21 License required; number of licenses issued.
§ 118-22 Application for license.
§ 118-24 Term of mobile food vendor license.
§ 118-25 Transfer of license.
§ 118-27 Application for health certificate.
§ 118-28 Health inspection; requirements.
§ 118-29 Standard of operation.
§ 118-30 License revocation or suspension.
§ 118-31 Violations and penalties.
§ 118-32 Incorporation of provisions.
Editor's Note: This ordinance also changed the title of the chapter from "Canvassers, Solicitors and Peddlers" to its current title.