One option is the same as discussed earlier: the seat could remain vacant. But in this context, that could leave the Court with fewer than nine Justices, and possibly an even number of Justices, for an extended time—eight years, in the example above.
If the seat that becomes vacant is the next one the sitting President would be entitled to fill in any event during the four-year term, the President could be given the power to nominate the Justice to fill that seat. That Justice would then serve eighteen years plus the small amount of additional time involved; if a currently sitting Justice’s term is scheduled to end in 2027, but ends in 2026, the new Justice would serve one year plus the new eighteen-year term. Given that a new Justice under this scenario would never serve more than twenty years, the normal presidential nomination and Senate confirmation process might be appropriate (that is, without a supermajority requirement).
If the President has not yet filled any of the two allocated seats, and the Justice who leaves is the one whose term would expire in year three of the administration, there are two options for addressing that scenario. In the first, the amendment would treat this situation as if the President is filling the first of two seats. The Justice who would otherwise be scheduled to retire first during that term would instead stay on until the term ends of the Justice scheduled to retire in year three—the Justice who has left prematurely. At that point, that Justice retires and the President fills the second seat. The second option is that the President appoints a Justice to fill out the remainder of the term for the Justice who left early plus eighteen years. When the term of the Justice scheduled to retire in year one of the administration ends, the President fills that term as well. The first option reduces possibilities of strategic retirements, but might be considered overly complex.
In any other context, the current President should at most have the authority to appoint a replacement only for the rest of the term that the departing Justice was scheduled to serve. Under the theory behind the term limits amendment, no President should get to make more than two eighteen-year appointments in any single presidential term. With respect to the replacement Justice, moreover, the options discussed earlier might be appropriate. First, a supermajority vote requirement in the Senate might be appropriate. Second, if there are “senior” Supreme Court Justices, one could be designated to serve out the remainder of the scheduled term.
