End the Supreme Court Vacancy Lottery

Justice Samuel Alito told CBS News that he thought about retiring this year and decided to stay because he believes he can still make a contribution. He also said, sensibly, that presidential politics should not dictate when a justice leaves, because no one can predict who will hold the White House or the Senate down the road.

He is right about the principle. The trouble is that the system we have makes politics the only thing that matters.

Consider how the next fight is already shaping up. Alito is 76 and Justice Clarence Thomas is 78. If either steps down next year, the outcome may depend less on the nominee than on which party controls the Senate after Nov. 3. Senate Minority Leader Chuck Schumer has made blocking what he calls MAGA justices a central reason to win the chamber. Senator Richard Blumenthal says a Democratic Senate would very likely not confirm a Trump nominee. Senator Ruben Gallego says Democrats should do exactly what Mitch McConnell did in 2016, when Republicans held a seat open for about 10 months rather than consider President Obama’s choice.

Republicans, for their part, are warning voters that only a Republican Senate can confirm Alito’s successor. In other words, both parties now treat the court as a prize to be captured at the right moment, and the justices themselves as players who time their exits.

We understand the Democratic impulse. The 2016 blockade was a raw exercise of power, followed by the rushed confirmation of a replacement for Justice Ruth Bader Ginsburg weeks before the 2020 election. Many Democrats see refusing to play by rules the other side abandoned as unilateral disarmament. Republicans make a serious argument in return: the Constitution gives the president the power to nominate, and a Senate that refuses even to consider qualified nominees for years would leave the court shorthanded and deepen public distrust.

Both points can be true, which is exactly why tit-for-tat cannot end well. Each round of retaliation lowers the floor for the next one. A court whose membership turns on actuarial luck and strategic retirements will keep losing the public’s confidence, whichever side is winning at the moment.

There is a better path, and Senator Mazie Hirono pointed toward it. Give every president two Supreme Court appointments per four-year term, on a fixed schedule, with justices moving to senior status after about 18 years. Versions of this idea have drawn support from scholars and former judges across the spectrum. It would lower the stakes of any single vacancy, end the grim speculation about justices’ health, and let voters know that a presidential election carries a predictable effect on the court.

Such a change would take legislation, possibly a constitutional amendment, and it should be phased in so that neither party gains an immediate edge. That is a long project. In the meantime, senators of both parties should commit publicly to giving any nominee a hearing and a vote within a set period, regardless of who controls the White House.

Alito says no one can predict the political situation. A well-designed system would not require anyone to try.