What happens in the case of early retirement, death or another unexpected vacancy?
In our plan, after 18 years, justices become senior justices. In the event of an unscheduled vacancy, either from death or incapacity, senior justices can be called back into service to fill out the term. If no senior justices are available, the court would operate with eight members until the next nomination.
Some have expressed concern that a vacancy might produce a “mini-term,” or that justices might retire early to give a president they are in political alignment with an additional pick. That would not factor into our plan, as unscheduled vacancies are filled by senior justices, not new appointees.
How does the office of Chief Justice fit into the plan?
Under our plan, the office of Chief Justice would be filled in the same was as each of the associate justices.
After serving 18-years, the Chief Justice would rotate off and become a senior justice. The president would then have the opportunity to appoint another Chief Justice, as President Bush did with John Roberts after William Rehnquist died. Or s/he could nominate any of the sitting justices to become chief, as President Reagan did with William Rehnquist after Warren Burger retired, and then fill the vacancy with a nominee who’d become the junior associate justice, as Reagan did with Antonin Scalia.
It is important to note, again, that our plan would not impact the current justices. Because of that, a new Chief Justice would not be appointed until current Chief Justice John Roberts leaves the bench.