Separation of Bench and Desk

The Chief is dead.... Time for Jesus to take control.

For some reason, CNN's been running video of Rehnquist descending the steps of St. Matthew's Cathedral with Hickey after one of the Washington Red Masses in a loop for hours. Interesting....

I listened to POTUS' statement this morning on the Sacred NPR as I was out driving. Judging by his line that "I will choose... a highly qualified nominee to succeed Chief Justice Rehnquist," he's leaving the door open to bring an outsider in to take the Chief's slot, as opposed to, say, making Scalia the first Catholic (and, we might add, first Italian) head of the Judiciary. Given the labyrinthine dynamic of the Supreme Court, and the literally Herculean role of the Chief Justice, a newbie as Chief Justice of the United States would sure be something.

(CORREX: Scalia would not be the first Catholic Chief Justice... That honor belongs to the second longest-serving Chief, Roger Taney of Maryland, who held the post from 1836-64. Taney is known to history buffs as the author of the Dred Scott decision of 1857.)

Taking my Vatican hat off and showing my good DC wonk colors for a moment (I do have an Ivy League degree in American Politics, after all), I'd like to touch on something for all of us to think about as the showdown to fill the Rehnquist vacancy begins, a pure policy consideration. The Chief's function goes way beyond simply presiding over oral argument and being responsible for the good housekeeping of the Court.

Earlier in the summer, a fascinating op-ed appeared in the pages of the NYTimes.

To look only at the chief justice's role within the Supreme Court... is to ignore his authority over the federal judiciary and his influence in Congress. In essence, the chief justice is the chief executive officer of a bureaucracy of some 1,200 life-tenured judges, 850 more magistrate and bankruptcy judges, and a staff of 30,000. He is the chair of the policy-setting body - the Judicial Conference of the United States - that establishes the priorities for the federal judiciary, including overseeing its budget, now about $5.43 billion annually. The chief justice appoints the director of the Administrative Office of the United States Courts and, together, they select the judges who sit on judicial committees focused on topics from technology to international judicial relations....

The chief justice also picks the judges who serve on federal tribunals like the Alien Terrorist Removal Court (with the power to permit deportation of legal aliens suspected of aiding terrorism) and the Judicial Panel on Multidistrict Litigation (with authority to consolidate cases pending across the federal system involving topics from toxic torts to antitrust violations). He decided which judges served on a special division of the District of Columbia Circuit when, because it had the power to select independent counsels, that panel famously chose Kenneth Starr to investigate allegations against President Bill Clinton. And the chief justice selects the 11 judges who sit for seven-year terms on the Foreign Intelligence Surveillance Act Court, which since its creation in 1978 has approved over 10,000 government requests for surveillance warrants.

The administrative role of the chief justice is a 20th-century invention, not a constitutional mandate. That role, and the additional stature that comes to the chief, are the product of some 100 ad hoc Congressional statutes and the ambitions of those who held the office. William Howard Taft, who became chief justice after serving as president, sought the expansion into policymaking. So did Earl Warren and then Warren Burger, who initiated the practice of giving annual "state of the judiciary" speeches. Chief Justice Rehnquist has gone further still, skillfully using the interaction of his administrative and adjudicative roles to shape the law of the land.

Congress and the public need to reconsider the wisdom of vesting so much responsibility in one person. Judges typically share power with other judges; judging on appellate courts is a collective enterprise, and trial judges are subject to appellate review. Moreover, both constitutional and common law traditions mandate openness in courts, with most decisions explained by reasons that are available for public scrutiny. The chief justice's administrative powers are subject to no such constraints.

So the Chief's got all this clout, and he has it for life. It's not a liberal or conservative issue, but one of policy considerations and how much power to concentrate in one person -- even if the issue is the self-government of the Federal Judiciary.

Any opinions on this one? It's a ripe time to think about it.

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