Endorsement: Retain Chief Justice Patricia Guerrero, Supreme Court and appeals justices, and to allow a majority, if not an even majority, of the appointments made by her to the supreme court, so long as the appointees were consistent with the constitution.
We don’t know exactly what Justice Guerrero is doing, because we get no real hint from the New York Times. But in her first action in six years from when she was named Chief Justice, it was announced that she had named a replacement for her.
The Supreme Court’s decision to appoint a new chief justice is a historic turning point as we have never seen a chief justice take her seat without a confirmation hearing.
The question presented by the court’s decision yesterday is not of whether Justice Guerrero is qualified, or of her political leanings, or anything connected to her judicial conduct: there’s no question about that.
No one even asked her.
The question before the court is one of constitutional principle: can a non-federal judge, who is not a member of the federal judicial branch of government, constitutionally serve as a federal judge?
And, importantly, is the new appointment to this seat going to be made by the judge herself, or is it going to be made by someone appointed by her, or will a federal judge appoint someone for her?
To be clear, a federal judge cannot order her appointee to leave the country. The Constitution does not give that power to the judges who are Article III judges, and Article III judges of the federal courts are appointed by the President with the advice and consent of the Senate.
It is the rare federal judge who does have the power to ask a non-federal judge to leave the country, and that power was delegated specifically to this court by the Constitution.
But, that is about the extent of the constitutional question. The Constitution gives the chief justice the power to appoint the federal judges, but it does not say anything about the chief justice.
The chief justice could do that through a confirmation hearing for the federal judges, or by a presidential appointment.
The chief justice has never exercised that kind of power.
The Constitution gives the President the power to nominate federal judges, but says nothing about that power.
It really makes no sense to have an entirely new federal bench in place with the chief justice of the United States nominating judges.
The Supreme Court has