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An Heir and a Spare—A Commentary by Ian Ayres ’86

The following commentary was published in The New York Times on May 8, 2009.

An Heir and a Spare
By Ian Ayres ’86

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?