Why not just nominate two justices to the U.S. Supreme Court now? In an op-ed published today in the Los Angeles Times, Yale Law School professors Akhil Amar ’80 LAW ’84 and Ian Ayres ’81 LAW ’86 argued that President Barack Obama should appoint an extra nominee to the nation’s highest court to speed up the confirmation process if another vacancy arises after Justice David Souter leaves the court in June.
An extra nominee, the professors said, would allow for justices to resign immediately, in contrast to the seven-month delay between former Justice Sandra Day O’Connor’s conditional resignation and the appointment of Justice Samuel Alito Jr. LAW ’75 to replace her.
Furthermore, they added, the definitive announcement of a replacement could persuade other justices to resign if they knew that a suitable successor lay in the wings. As an example, the professors argued that if Obama tapped a “true moderate” as a second nominee, it could very well persuade Justice Antonin Scalia, 73, to step down.
Future presidents need not worry about Obama packing the court with preemptive nominees. Per the Constitution, the professors said, a president can simply decline to commission a nominee, even if he or she was appointed by a previous president and confirmed by the Senate.