Presidential Commission on the Supreme Court of the United States
of the supreme Court.” Therefore, critics will assert that the judges who sit and decide cases on the Supreme Court must hold the office of “Judges of the supreme Court.”
Proponents will respond that the existence of a separate office of “Judge[] of the supreme Court” does not mean that someone not appointed to that office is forbidden to serve on the Supreme Court by designation. Federal judges often serve on different courts by designation without receiving new commissions. Retired Supreme Court Justices serve on appellate and district courts; appellate judges serve as district judges, and district judges serve as appellate judges by designation. In addition, Supreme Court seats have been filled on a temporary basis through recess appointments without a lifetime appointment, and even without Senate confirmation. The Vacancies Clause of Article II, Section 2, Clause 3, which applies to federal offices generally, provides that “[t]he President shall have Power 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.”[85] Over three hundred federal judges, including fifteen Supreme Court Justices, have been appointed through this process.[86] Lower federal courts have approved of its constitutionality.[87] If Presidents may temporarily fill Supreme Court vacancies without the Senate’s advice and consent, the argument goes, a fortiori they should be permitted to do so with the Senate’s advice and consent.[88]
Critics will say that the Constitution distinguishes the Supreme Court from other federal courts and that everyone who sits on the Supreme Court must hold the office of “Judge[] of the supreme Court” (whether pursuant to a regular appointment under the Appointments Clause, which lasts during good behavior, or a recess appointment under the Vacancies Clause, which lasts for at most two years). Critics may also note that in the vast majority of cases, when a President has made recess appointments to either the lower courts or the Supreme Court, Congress has subsequently confirmed these judges and Justices to lifetime appointments.[89] And when judges sit by designation on other courts, they usually remain only for a short time, and sometimes only for a single case. This practice, critics of this proposal will argue, is very different than a statutory designation lasting eighteen years, which would cover a sizeable proportion—and often a majority—of any federal judge’s career. There is nothing temporary about such appointments, and hence they cannot be justified by existing practice.
A second main objection to the Designated Justices proposal is rooted in past practice: No person who does not hold the office of Justice of the Supreme Court has ever sat on or decided a case before the Supreme Court.[90] Justices have indeed sat on lower federal courts from the beginning of the Republic, and Justices who take senior status sit by designation
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