About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline

LOG IN
LOG IN


102 Va. L. Rev. Online 1 (2016)

handle is hein.journals/inbrf102 and id is 1 raw text is: COPYRIGHT 0 2016, VIRGINIA LAW REVIEW ASSOCIATION VIRGINIA LAW REVIEW ONLINE VOLUME 102 APRIL 2016 1-7 ESSAY A MODEST PROPOSAL FOR JUSTICE SCALIA'S SEAT Aneil Kovvali* T HE unexpected death of leading conservative Supreme Court Justice Antonin Scalia during the final year in office of liberal President Barack Obama has had a seismic effect on the political scene. Even before President Obama could nominate a replacement, members of both parties aggressively staked out contrary positions. Part of the acrimony is surely driven by the stakes: The Supreme Court has taken on an increasingly central role in our national life, and a lifetime appointment to the Court would reshape its direction for decades to come. The prospect of a lame duck President making a choice with such long term consequences as a result of the unanticipated death of one man naturally raises meaningful concerns. But the present crisis creates a real opportunity to revisit a harmful assumption about the Supreme Court that is driving the conflict. While lifetime tenure on the Supreme Court is commonly assumed to be required by the Constitution, the Constitution grants Congress substantial flexibility in structuring the judicial branch. Congress might use this flexibility creatively, to appoint judges who enjoy life tenure but spend only part of that tenure on the Supreme Court. President Obama would then be able to fill Justice Scalia's seat without remaking the Court for decades to come. Even if * Associate, Wachtell, Lipton, Rosen & Katz. The views expressed in this Essay are my own, and do not necessarily represent the views of the firm or its clients. I thank Suneal Bedi and William C. Marra for thoughtful comments and suggestions. Any remaining errors are mine.