A second option would be to give the chief judges (or a subset of them) the power to directly designate a Justice after a prolonged impasse. The amendment could also limit the chief judges to selecting a sitting federal court of appeals judge. These are the individuals with appropriate experience whose fitness for the Court the chief judges would be in the best position to evaluate. Good reasons might exist to appoint to the Court persons other than federal court of appeals judges. But empowering the chief judges to directly appoint anyone in the country to the Court would put enormous discretion in the hands of this body. Limiting the set of potential appointees to existing court of appeals judges would substantially constrain this power. Because this fallback mechanism would come into play only when the Senate repeatedly rejects a President’s nominees, it is not likely to affect the majority of seats on the Court.
If one worries that the knowledge of the sitting chief judges’ identities would shape the actions of the President or the Senate, this power could be given to a random selection of seven or five of the chief judges. An advantage of using the chief judges (or a subset of them) is that the amendment would not have to design from scratch a new, independent institution to serve as the fallback mechanism. Given the complexities of designing such a new institution, as well as questions about how well the public would accept that institution, the easier course may be to use a set of actors who have been Senate confirmed already and for whom a selection mechanism also already exists.[97]
An amendment could instead provide that if the Senate rejected one nominee, the threshold for confirmation of the next nominee for that seat would decrease. Alternatively, the amendment could provide that if the Senate fails to confirm a nominee by a certain point, the President would have the power to designate any sitting federal judge (or any circuit judge) to fill that eighteen-year seat. But both of these options might be thought to give too much power to the President.
B. Term Limits by Statute and the Confirmation Process
If term limits are implemented by a statute rather than a constitutional amendment, modifications to the confirmation process must be consistent with the current constitutional framework, which gives the President the power to select a nominee and the Senate the power to approve or disapprove. It might still be possible to create a backup mechanism of the sort discussed above, but such a mechanism would have to be understood as a delegation of authority by the Senate and/or the President. The constitutionality of such a delegation is not
