An Heir and a Spare

Akhil Amar and I just published an op-ed piece in the Los Angeles Times suggesting that President Obama might nominate two justices for the Supreme Court:

Souter‘s formal letter to Obama indicates that he will step down at the end of this term — presumably late June. But nothing prevents the president from nominating now and the Senate from confirming next month, while Souter is still a sitting justice.

This would hardly be unusual. In a letter sent to President George W. Bush in July 2005, Justice Sandra Day O’Connor wrote that her resignation would become “effective on the nomination and confirmation of my successor” — an event that did not occur until the middle of the following term. Chief Justice Warren Burger and justices Thurgood Marshall and Harry Blackmun also continued to sit during the process of nominating and confirming their successors.

But if the president may nominate a justice before a formal vacancy occurs, why can’t he do so before an informal announcement of a planned retirement? Why shouldn’t the president feel free in the next few weeks to nominate two people to the court — an heir and a spare, one to fill Souter’s seat and one to fill the next vacancy when it arises?

Replacing a justice requires five distinct steps:

1) A resignation (or death),

2) a presidential nomination,

3) a Senate confirmation,

4) a presidential commission, and

5) an oath of office.

But the current practice of conditional resignations already shows that presidents can nominate while the justice to be replaced is still sitting and deciding cases.

We think that pre-resignation nominations would have several potential advantages:

Sitting justices would be free to leave whenever they wanted, without fear that the court would be crippled until they were replaced. Likewise, an unexpected death would not leave the court short-staffed because a pre-approved replacement justice would be ready to step in — much as vice presidents and lieutenant governors stand ready to fill executive branch positions that suddenly open up.

The idea of a vice justice is a great application of two different creativity tools that Barry Nalebuff and I wrote about in Why Not? First, you might come to it by using the translation tool: starting with the continuity benefit of the vice-presidency and then asking “Where else would this solution work?” Or alternatively, you might generate the idea by using the flipping tool: what’s the opposite of nominating a replacement after a resignation?


Adam

This could lead to marginally healthy judges hanging on if they didn't like their nominated and confirmed heir.

Skeptical

If you follow this logic, what stops Obama from nominating the next 8 Justices before even one more spot opens up, especially if the Senate is the super majority. Its a slippery that could determine the philosophical path of the judiciary into the foreseeable future which completely undermines the checks and balances goal of three branches of government.

Mike

There would definitely be an effect in terms of the ideology of the justices confirmed if they were to stand ready to fill in whenever called upon. Since it might be impossible to predict which justice would need to be replaced next, we would probably see more centrist candidates nominated, since extremely conservative ones could be filibustered by Democrats and extremely liberal ones by Democrats. Not for nothing, the President did vote in favor of filibuster with Bush's nominees when he was a Senator, so this could get ugly as it is.

David

Some problems with that idea:

What if a president nominates and the senate confirms a justice but no justice resigns or dies before the president leaves office? The next president would want to make his own pick, so the nominated and confirmed justice would have to be un-nominated.

Also, given the not-quite-yet-appointed-for-life status, wouldn't the nominated and confirmed justice be subject to media and opposition party scrutiny in the period between confirmation and actually replacing a justice?

Robert Cosgrave

This approach would make it impossible for a President to maintain a liberal / conservative balance on the court, as there is know way of knowing whether a liberal or conservative judge is next to go. Whether by intent or accident, the court has, in general, been fairly balanced. Some of the more liberal judges have been appointed by conservative Presidents (and vice versa).

A replacement Supreme Court judge should provide a perspective the court might otherwise lack. This cannot be determined until the next vacancy is known.
-Robert

charles

lol...

"Sitting justices would be free to leave whenever they wanted, without fear that the court would be crippled until they were replaced. Likewise, an unexpected death would not leave the court short-staffed because a pre-approved replacement justice would be ready to step in — much as vice presidents and lieutenant governors stand ready to fill executive branch positions that suddenly open up."

- you can't be serious? I hardly think the court would be thrown off the rails. No need for the innovation really.

Jeff D

Interesting hypothetical.

What if the Democrats really tried to flex their electoral muscle and change the court altogether by adding seats to the bench? The Constitution does not specify how many justices are on the court; it is determined by statute that has changed before.

At one point, the number of justices corresponded to the number of circuits. What if Obama decided to go back to that and got Congress to change the number to 11? This could allow him to get very creative with the nominations, even proposing some that might make conservatives happy.

Travis

I think FDR tried to change the court substantially when he ran into Commerce clause problems in his first term while trying to uphold the labor standards act. I don't know adding justices to the bench would help or hurt.

The obvious thing has been brought up many times in that a president could nominate a series of judges to replace those that may resign. That could pretty easily be solved by expunging the list when the president leaves office, but it seems like it could have some other ill effects.

It would give justices a strong incentive to never retire if they didn't like the justice that was set to replace them.

The real question is if there is a solution to the problem of nominating sub par attorneys to be supreme court justices because they are both young and politically aligned with the president at the time.

Chris W

The "spare" would have almost no ability to practice law from the point of such conditional nomination on, unless they are already on the bench. Every case they took on as a lawyer would be tinged with either current ethical issues or ethical issues when they are eventually elevated. I'm not sure any right minded nominee would relish the concept of having to be the nominee-in-waiting.

Harrison

I wonder if this would encourage/discourage judges from leaving based on the batter's box,.

HoldOn

I know it's been said, but I think I've got to echo general consensus here: even if all of a given President's in-waiting nominees were un-nominated when that president left office, it would still prove a severe imposition on the justice-in-waiting's professional practice. I do also agree that it would likely lead to a more centrist (or potentially an increasingly unbalanced) bench. But I think what bothers me most is that it seems that Justices often hold off or expedite their retirement based on the match or mismatch between their ideological leanings and those of the current President, I think having justices-in-waiting would only exacerbate this problem.

MP

You see things that are and ask why not, I see things that are not and ask why not. Why not? Perhaps it would be that a nomination process for a nonessential role would be a tremendous distraction from other pressing issues (I might be overestimating the importance of anything Congress does with that one).

Andre Wirjo

2 main concerns on your proposal (although they have been mentioned in one way or another by others):
1) The possibility of nominated and confirmed justices not being able to take up the posts as none of the current justices resigns or dies during Obama administration. Nominated justices cannot be carried over to the next administration for obvious reason.
2) It prevents the current justices from exercising their benefits of resigning under favorable administration (conservative/ liberal)