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Presidential Commission on the Supreme Court of the United States
  1. ↑  In the alternative, one might argue that they retain judicial office, but not office as Supreme Court Justices, or that they hold multiple judicial offices, and give up one when they take senior status. See David R. Stras & Ryan W. Scott, Are Senior Judges Unconstitutional?, 92 Cornell L. Rev. 453, 475–78 (2007) (suggesting that both Booth and 28 U.S.C. § 371 could be read to mean that senior status judges retain judicial office without still holding the same offices that they served in before they retired); cf. William Baude, The Unconstitutionality of Justice Black, 98 Tex. L. Rev. 327, 338–42 (2019) (focusing specifically on the retirement of Supreme Court Justices, and discussing the possibilities that they retain their old office, that they move into a new office, or that they started off with two offices and surrender one upon retirement).
  2. ↑  John Harrison, The Power of Congress Over the Terms of Justices of the Supreme Court, in Reforming the Court: Term Limits for Supreme Court Justices 361, 366 (Roger C. Cramton & Paul D. Carrington eds., 2006).
  3. ↑  Id.
  4. ↑  Id. at 367; cf. Philip B. Kurland, The Constitution and the Tenure of Federal Judges: Some Notes from History, 36 U. Chi. L. Rev. 665, 697 (1969) (“I am quite convinced that it would be unconstitutional for the Congress to attempt, by legislation, to establish a fixed term of office for judges of the federal constitutional courts.”).
  5. ↑  Act of Feb. 25, 1919, ch. 29, § 6, 40 Stat. 1156, 1157 (codified as amended at 28 U.S.C. § 375 (1934)).
  6. ↑  Because Booth involved the 1919 federal statute under which lower federal court judges had been deciding cases as senior judges, Booth also concluded that it was “too late to contend that services so performed were extra-legal and unconstitutional.” Booth, 291 U.S. at 351. It is unclear what weight that factor—or the practice of retired Justices sitting by designation on lower federal courts—would carry in a statute that imposes for the first time on Supreme Court Justices the new status of Senior Justices.
  7. ↑  See 17 Annals of Cong. 22 (1807).
  8. ↑  See First-Ever Measure to End Life Tenure on the Supreme Court Via Statute, Not Amendment, To Be Introduced, Fix Ct. (Sept. 29, 2020), https://fixthecourt.com/2020/09/first-ever-measure-end-life-tenure-supreme-court-via-statute-not-amendment-introduced (referring to H.R. 8424, 116th Cong. (2020)).
  9. ↑  See Jack M. Balkin, Don’t Pack the Court. Regularize Appointments., Balkinization (Oct. 5, 2020), https://balkin.blogspot.com/2020/10/dont-pack-court-regularize-appointments.html.
  10. ↑  U.S. Const. art. III, § 2.
  11. ↑  5 U.S. 137 (1803).
  12. ↑  Id. at 175.
  13. ↑  U.S. Const. art. III, § 1.
  14. ↑  See Calabresi & Lindgren, supra note 14, at 855–58, 860 (2006) (considering the proposal but rejecting it because the work of a Supreme Court Justice is not germane to the duties of a lower court judge).
  15. ↑  U.S. Const. art. II, § 2, cl. 3.
  16. ↑  Diana Gribbon Motz, The Constitutionality and Advisability of Recess Appointments of Article III Judges, 97 Va. L. Rev. 1665, 1670 (2011).
  17. ↑  See, e.g., United States v. Woodley, 751 F.2d 1008, 1014 (9th Cir. 1985) (stating that “a recess appointment to the federal bench [] could exercise the judicial power of the United States”).
  18. ↑  Following President Eisenhower’s recess appointments of three Justices, the Senate passed a resolution discouraging the practice of Supreme Court recess appointments, but the primary concern there was that recess appointments bypass the advice and consent process, not that they are temporary.
  19. ↑  Motz, supra note 86, at 1670 (“By 2000, Presidents had made more than 300 recess appointments of Article III judges, and of those, only thirty-four had not been confirmed.”).
  20. ↑  Harrison, supra note 72, at 365.
  21. ↑  A final objection to the Designated Justices proposal is that it adds new duties to the office of lower federal court judge, perhaps triggering the germaneness analysis set out in Weiss v. United States, 510 U.S. 163 (1994), discussed above. See Calabresi & Lindgren, supra note 14, at 860 (2006) (raising this concern). This analysis might or
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