clear, and the relevant actor might also be able to revoke it unilaterally, undoing most of its benefits.
Another means of dealing with the possibility of a prolonged impasse might include a statute that prescribes that the threshold number of votes for confirmation decreases each time the Senate refuses to confirm a nominee. The constitutionality of such a statute is unclear, however, given that the Constitution gives each chamber the power over its own rules and procedures.[98] The Senate could instead incorporate such a policy into its own Senate rules; a later Senate, however, could change that rule. Alternatively, consistent with the Designated Justices proposal set out above, a statute might provide that in the event of an impasse, the President could designate a lower court judge to fill the Supreme Court vacancy for an eighteen-year term without Senate confirmation. This statute would be subject to many of the same constitutional concerns as the Designated Justices proposal, although it would operate with respect to only some seats rather than all of them.
Last, a statute might provide that if the Senate fails to confirm one or both of a President’s scheduled appointments, the next President of a different party would lose a corresponding number of appointments. While this approach might occasion substantial constitutional debate, its justification might be grounded in the view that Congress has authority to determine the timing of judicial appointments, as well as the size of the Court. But even if constitutionally defensible and reasonably effective, making party affiliation relevant to the operation of the statute is arguably problematic. Such a statute also poses the risk that an extended impasse would shrink the Court. And because what is effected by statute can also be undone by statute, this alternative could also become another front in the polarized and destabilizing partisan contestation of the times.
VI. Concluding Considerations
A final set of concerns about enacting term limits via statute rather than constitutional amendment can be viewed as prudential or grounded in the separation of powers. If Congress has the power to change the composition of the Court by statute, it could mean that Congress has considerable flexibility in altering the duties of the Justices in other ways. Once Congress has exercised the power to change the Court’s composition by statute in order to regularize appointments, Congress might seek to do so for other purposes. If federal statutes can validly restrict members of the Supreme Court to a very limited set of duties after a certain number of years, Congress might try to establish other criteria for imposing similar limits on a subset of
