Presidential Commission on the Supreme Court of the United States
Some witnesses testified that confirmation in this context should require a supermajority Senate vote.[44] The justification for that higher hurdle is that seats that become vacant before the end of an eighteen-year term reintroduce a random element into the timing of appointments by allowing certain Presidents to make more than two appointments. On this view, those appointments should succeed only if they are backed by a significant consensus in the Senate. Although a supermajority requirement might lead some seats to remain vacant (as in the first option), no President would be deprived of the right to make two regularly scheduled appointments in a presidential term. If the amendment does permit the President to fill out the term of a seat that becomes vacant prematurely, the drafters might consider prohibiting the person appointed from being reappointed to a full eighteen-year term.
A third option depends on how the amendment treats Justices who have reached the end of their eighteen-year terms. The amendment might define these individuals as “Senior Justices,” who continue to hold offices as Article III judges but no longer participate in the day-to-day operation of the Court. Given that these Justices have all been confirmed by the Senate, the amendment could give the President the option to designate a Senior Justice, if one is available, to fill out an eighteen-year term that has become vacant prematurely. If unilateral presidential designation is undesirable, the amendment could instead require the Senate to confirm the President’s choice (if no Senior Justices are available, one of the first two options would have to apply).
C. Designing the Transition to Fixed-Term Appointments
How to structure the Court’s transition to fixed-term appointments presents significant practical challenges. The most significant options that have been proposed are discussed below. For purposes of this analysis, our discussion will assume an eighteen-year term with regular presidential nominations in years one and three of a President’s term.
1. Sitting Justices Retire on a Fixed Schedule That the Amendment Establishes
Under this approach, once the amendment takes effect, the longest-serving Justice would retire in year one of the first presidential term in which the amendment takes effect. The next most senior Justice would retire in year three, and so on. This strategy is the conceptually cleanest structure for the transition. Were this approach adopted, sixteen years after the first Justice is appointed to a term-limited seat, the full Court would consist entirely of Justices serving eighteen-year terms. For instance, if the amendment took effect in 2025, the most junior Justice on the current Court would retire in 2041, after twenty-one years of service. If
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