We asked ourselves this question in Sept. 2016, and after eight months of discussions with just about every constituency you could think of, this is what we and our partners came up with, which we stand by today:
THE REGULARIZATION OF SUPREME COURT APPOINTMENTS ACT
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.