today. Nevertheless, the opposite has never occurred—lower federal court judges have never sat by designation on the Supreme Court. The novelty of the practice suggests that it is unconstitutional.
Proponents will respond that if Justices may “move down” and sit on lower courts by designation, there is no reason why lower court judges may not “move up” by designation. In fact, district court judges often sit by designation on circuit courts of appeals. Proponents would assert, therefore, that district and circuit court judges should also be able to sit by designation on the Supreme Court. The novelty of a practice does not by itself prove that it is unconstitutional; otherwise, a host of federal laws that exercised constitutional powers in new ways would be unconstitutional.[91]
V. Addressing the Risk of Repeated Confirmation Impasse
It is essential that any term limits proposal provide an acceptable mechanism for resolving the problem of repeated confirmation impasses. Absent such a mechanism, the repeated failure of the Senate to confirm any nominee would undermine a major justification for staggered term limits: that each President be entitled to the same number of regular nominations. Designing a structure to address the risk of impasse, however, is not an easy matter. That structure must not give too much effective power to the President but also address the risk of repeated confirmation impasses. And the difficulty of reforming the confirmation process is among the reasons opponents of term limits reject the reform.
Reform of the general structure of presidential nomination and Senate confirmation is not squarely within the Commission’s remit. In this Part we consider some means by which to address potential confirmation impasses under a system of term limits. In addition, in an Appendix to this Report we summarize some helpful testimony regarding potential reforms to the confirmation process more generally.
A. Term Limits by Constitutional Amendment and the Confirmation Process
The options for designing a mechanism to avoid a confirmation impasse are different and broader in the context of designing an amendment as opposed to a statute. Some have suggested that a constitutional amendment should provide that a nominee will be deemed confirmed if the Senate does not vote to disapprove within a specified time, such as four
