Presidential Commission on the Supreme Court of the United States
months after nomination.[92] (This proposal is somewhat similar to Madison’s initial proposal at the Constitutional Convention that judges be deemed confirmed if they were not rejected by a two-thirds vote of the Senate by a date certain, a proposal that the Convention rejected.[93]) This might be a good idea as a starting point, but more is required to address the risk of the Senate repeatedly voting down successive nominees for a particular eighteen-year seat.
To begin to address this potential concern, the amendment would first have to define the circumstances that trigger any fallback mechanism. For instance, the trigger might be the Senate voting down two consecutive nominees. This trigger may be particularly apt if the amendment also adopts the provision deeming a nominee automatically confirmed if the Senate fails to vote at all after a set time. If that time is set at four months, then this fallback mechanism would come into play after roughly eight months of a confirmation impasse. Another option would be to trigger the fallback mechanism at a set amount of time after the date the President nominates a person for the particular eighteen-year position.
The Commission is not aware of any scholarship that explores in-depth the issue of an appropriate design for a fallback mechanism. Witnesses offered a few brief suggestions. One is that the President present three nominees to the Senate; if the Senate rejects all three, the President is then empowered to choose one of those to sit on the Court.[94] But Presidents could easily game this system, choosing two figures the Senate would never approve and thereby effectively gaining unilateral power to fill the seat. Another possibility would be for the amendment to specify that the Senate cannot conduct other business while a nomination is pending.[95] But this approach would preclude the Senate from acting on any number of urgent issues that might arise, including those involving our national security.
From an institutional-design perspective, the challenge is that any backup mechanism that stays within the traditional President–Senate framework risks giving either too much unilateral power to the President or too much blocking power to the Senate. The solution might need to rest with an institution that sits outside this framework. One possibility is that, in case of a prolonged impasse, the chief judges of the twelve non-specialized federal courts of appeals (or a subset of them) could be assigned one of two roles.[96] On one approach, once this fallback mechanism is triggered, this body of chief judges would become the confirmation body for the President’s choice. Two institutions of the government would thus still be required to confirm a Justice. A subsidiary issue to consider is whether the President should be precluded from nominating any individual whose appointment to the Court the Senate has affirmatively rejected.
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