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Tuesday, July 14, 2009


Shortly after David Souter announced his retirement from the Supreme Court, PJP Faculty Member Akhil Amar and his Yale Law School colleague Ian Ayres wrote an Op-ed piece for the Los Angeles Times in which they suggested that the president name not one but two justices – “an heir and a spare.” One would occupy the seat that Souter is abandoning and another would be touted to “fill the next vacancy when it arises.” This idea of a “justice in waiting” may seem odd and it certainly is unprecedented, but consider these two law professors’ logic:

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.

There was a time when Senate confirmations were quick. The Senate confirmed George Washington's first six nominees to the court in two days. As late as 1975, Justice John Paul Stevens was confirmed less than three weeks after his nomination. But those days are gone. Since Robert Bork's failed nomination in 1987, the Senate has typically taken months to confirm even uncontroversial court nominees. Most recently, seven months elapsed between O'Connor's conditional resignation letter and the filling of her seat by Samuel A. Alito Jr.

Consider next the political and policy advantages. A president might entice a justice to retire by naming a replacement the justice has special reason to respect. For example, Justice Antonin Scalia is 73 years old, but no one expects that he will voluntarily resign any time soon and thereby give a liberal president carte blanche to appoint a replacement. But if Obama and the Senate moved first and named a true moderate of extraordinary distinction, Scalia would face a very different calculus. The president could move the court in his desired direction, but Scalia could have some confidence that it would not move too far.

As this example illustrates, the president could choose to nominate either a general purpose vice justice, who would fill whatever vacancy might arise, or a seat-specific vice justice, who would be eligible only to fill, say, the seat currently held by Scalia when that seat becomes vacant.

If two nominees this season are OK, why not nine or 19? What is to stop an administration from stealing from future administrations by trying to fill seats that will open up only in the distant future? The Constitution's formal rules offer rock-solid protections for future presidents. Even a nominee who has been confirmed by the Senate cannot take office until a vacancy actually exists; and the sitting president at the time that vacancy arises has the lawful authority to decline to commission even someone already nominated by his predecessor and confirmed by the Senate. Thus, even if Obama were to try to name nine vice justices, the next president would decide for himself or herself whether to honor the Obama slate or start afresh.

Indeed, even Obama would not be legally bound to commission someone whom he himself had nominated years earlier; but as a practical matter it would be very hard, politically, for him to renege, especially if a sitting justice had chosen to step down as a result. (Similarly, a president is free to veto a bill he has pledged to sign, but one who does so pays a heavy price for the double-cross.)

The idea of anticipatory vice justices may strike many observers as a big change of the rules -- albeit a change justified by the recent slowing of the Senate confirmation process. Perhaps the vice justice system should not go into effect until after the next presidential election. During that election, candidates can speak to the voters about their competing visions for the court, and any candidate who endorsed the vice justice system would have a genuine mandate to try it. For now at least, perhaps Obama needs to add only one new item to his plate, even though the Constitution gives him the option to do even more.

1 comment:

  1. Professor Amar has hit upon a great idea (he usually does) in suggesting that there be a "spare" or "spares" appointed to the Supreme Court. My reaction is why not go further and set up a full time, lower tier supreme court of nine additional justices who would function together as a clearing house for important cases that do not merit the consideration of the top dogs. This lower supreme court deserves consideration for many of the same reasons already given by Professor Amar. There are some others:
    It is clearly within the power of Congress to ordain and establish this under either the auspices of "one supreme Court" in two parts, or of "inferior Courts," as stated in Art. III;
    It permits a pool of justices who can be called upon to replace higher Justices who recuse themselves; become ill; grow weary of the tremendous workload and wish to retire without undesired political/philosophical consequences; or for any reason leave the higher Court without its full membership;
    It permits lower level supreme court justices to become acquainted with the workings of the High Court and to accommodate its traditions, etc.;
    It gives a quick and orderly process for replacing Justices and even Chief Justices from an existing already approved body without the political delay which occurs in present circumstances;
    It allows more cases to be given plenary consideration by a "supreme Court" and allows increasing the number of final decisions announced by the Court from its present number (which has hovered around 80 for some years now).
    Finally, it may also correct some of the potential unfairness of the "cert. pool" so that more justices and clerks could review the petitions to insure that deserving petitions be granted hearing.

    There may be issues of duplicating the evils of the appointment process by merely lowering the level one notch, and there are problems in giving the chief executive such power at the new court's beginning (naming all nine new lower Court justices smacks of excessive Court packing; but some compromise could be worked out with Congress to allow a more gradual appointment and provide both efficiency and fairness). There are, of course, financial considerations and the obvious procedural issues, etc.; but with the number of requests for cert. now exceeding 8000, it seems that more attention must be paid.