Dear Chairmen Grassley and Goodlatte and Ranking Members Feinstein and Conyers:
Politics has infected the Supreme Court confirmation process. Everyone knows it. Denying it is pointless, and so is blaming one another for starting it.
The American people do not care who created this problem or how it began. They want their elected representatives to fix it.
The attached proposal, which incorporates the ideas of both conservative and liberal legal scholars, is an effort to do just that. It removes the unabashed partisanship of the current process by creating a fair and regular system for biennial appointments to the nation’s highest Court.
Future appointments would be scheduled for the first and third years of each president’s term. Since federal judges have the right to a lifetime appointment, a justice cannot be forced to step down entirely. Under our proposal, justices who have served for 18 years would become senior justices, entitled to all of the benefits of the office; could sit on lower federal courts, as many retired justices have done; and would be available to fill in to break a tie vote in an exceptional case that requires a decision – think of Bush v. Gore with an eight-member Court.
Standardizing the selection process has numerous collateral benefits. It ends the randomness of appointments, which has given some recent presidents many vacancies with others having none. It curtails the ability of justices to time their retirement to when an ideological cognate sits in the White House. It halts the tendency of justices to remain in office until ages that were unimaginable in 1787, all but guaranteeing that some jurists in every generation succumb to mental decline while still on the bench. Finally, it gives guidance on how the political branches may handle unexpected vacancies.
The bill we propose is by no means perfect in all its details, but the basic concept of a regularized appointment process is one that all those who care about the Court and its place in our system of government should applaud.
After all, there is nothing in the Constitution that prevents Congress from taking positive steps to make the confirmation process of Supreme Court justices more routine and less overwrought, and we hope this proposal begins a broader conversation about this process – and how to fix it – in earnest.
We look forward to your feedback.
Vikram Amar, Dean and Iwan Foundation Professor of Law, University of Illinois College of Law
Paul Carrington, Harry R. Chadwick, Sr. Professor Emeritus of Law, Duke University School of Law
Lino Graglia, A. W. Walker Centennial Chair in Law, The University of Texas at Austin School of Law
Jamal Greene, Dwight Professor of Law, Columbia Law School
Melissa Hart, Schaden Chair and Professor of Law; Director of the Byron R. White Center, University of Colorado Law School
Yale Kamisar, Clarence Darrow Distinguished University Professor of Law Emeritus and Professor Emeritus of Law, University of Michigan Law School
Michael Klarman, Kirkland & Ellis Professor of Law, Harvard Law School
Sandy Levinson, W. St. John Garwood and W. St. John Garwood, Jr. Centennial Chair; Professor of Government, The University of Texas at Austin School of Law
George Liebmann, Executive Director of the Calvert Institute for Policy Research and President of the Library Company of the Baltimore Bar
Frank Michelman, Robert Walmsley University Professor, Emeritus, Harvard Law School
Alan Morrison, Lerner Family Associate Dean for Public Interest and Public Service Law; Professorial Lecturer in Law, George Washington University Law School
Harold Pollack, Helen Ross Professor, The University of Chicago School of Social Service Administration
Scot Powe, Anne Green Regents Chair in Law; Professor Government, The University of Texas at Austin School of Law
William Reynolds, Jacob A. France Professor Emeritus of Judicial Process, University of Maryland Francis King Carey School of Law
William Richman, Distinguished University Professor and Professor of Law Emeritus, University of Toledo College of Law
Kermit Roosevelt, Professor of Law, University of Pennsylvania Law School
Mark Rosen, Professor of Law, Illinois Institute of Technology Chicago-Kent College of Law
Eric Segall, Kathy and Lawrence Ashe Professor of Law, Georgia State University College of Law
Ted St. Antoine, James E. and Sarah A. Degan Professor of Law Emeritus, University of Michigan Law School
Joan Steinman, University Distinguished Professor and Professor of Law, Illinois Institute of Technology Chicago-Kent College of Law
Peter Strauss, Betts Professor of Law, Columbia Law School
REGULARIZATION OF SUPREME COURT APPOINTMENTS ACT OF 2017
Section 1: Except as otherwise provided herein, the President may, during the first and third years after a year in which there is a Presidential election, nominate, and by and with the advice and consent of the Senate, appoint one Justice of the Supreme Court. The appointment shall become effective on August 1 of that year, unless there is a current vacancy on the Court, in which case the appointment shall be effective as soon as the Justice is duly sworn into office.
Section 2: Except as provided in section 7, after an appointment under section 1 has become effective, if there are more than nine Justices on the Court, the Justice who has served on the Court for the longest period of time shall become a Senior Justice and shall continue to hold the office of Justice and be entitled to all benefits arising thereunder. If the Court invokes the provisions of section 5 of this Act, a Senior Justice may become a sitting member of the Court for a period specified by the Court or for the duration of service on a case or cases specified by the Court.
Section 3: If a vacancy occurs on the Court after an appointment is made in the first year after a presidential election under section 1 and before the end of the second year of the President’s term, the President may make the appointment normally scheduled to be made in the third year of the President’s term, and that appointment shall become effective when the Justice is duly sworn into office. In that event no appointment may be made in the third year unless there is a further vacancy on the Court, in which case the provisions of section 4 shall apply.
Section 4: If a vacancy occurs on the Court after an appointment was made and became effective in the third year after a presidential election under either sections 1 or 3, the President may nominate a Justice, and the Senate may decide whether to provide its advice and consent to such nomination. If a nominee is appointed, the next scheduled appointment shall not be made unless there is an additional vacancy. If there are multiple vacancies at the same time, the principles in this section and section 3 shall apply.
Section 5: Whenever a vacancy occurs on the Court by reason of the death, retirement, resignation, or removal of a sitting Justice, the vacancy shall be filled by the available Senior Justice who has most recently entered into Senior status, to serve until such time as a newly appointed Justice shall enter into service. Such Senior Justice shall during that period exercise the powers of a sitting Justice, as further provided by rules for such situations to be issued by the Supreme Court. If a Justice is recused in a case of exceptional importance before the Court, the Court may request the Senior Justice who has most recently entered into Senior status participate in that case as a member of the Court.
Section 6: If, at the time of any appointment under this Act, there is a vacancy in the office of Chief Justice, or if the Chief Justice is the Justice to whom section 2 will apply, and if the President nominates a sitting Justice to be Chief Justice, the President may also make an additional nomination if the Senate consents to the nomination of the sitting Justice to be Chief Justice.
Section 7: No Justice who was appointed prior to the effective date of this Act shall be required by section 2 to become a Senior Justice as provided therein.
Section 8: This Act shall become effective on enactment.