Amendment XXVIII: A First Draft

Section 1. Article III, Section 1 is hereby repealed. The authority granted in Article II, Section 2 to the President to nominate and to appoint, by and with the advice and consent of the Senate, judges of the Supreme Court is hereby revoked.

Section 2. The judicial power of the United States, shall be vested in one Supreme Court and in such inferior courts as the Congress may from time to time ordain and establish. The Supreme Court shall have the power to hear cases before panels of some of their number and en banc, according to procedures it establishes. A resolution by a panel of the Supreme Court shall be deemed a resolution by the Supreme Court, unless it thereafter reviews the resolution en banc.

There shall be eighteen Justices of the Supreme Court, each of whom shall serve an eighteen-year term as an active Justice. Thereafter, a Justice may continue to serve by designation on lower courts and otherwise to support the judiciary. The judges, both of the supreme and inferior courts, shall hold their offices during good behavior, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.

Section 3. Upon a vacancy on the Supreme Court, a Justice shall be appointed by the President after nomination, unless the Senate disapproves by a vote of 3/5 of its number within 45 days of notification of the nomination. In case three nominations for a vacancy are disapproved, the Supreme Court shall pass on the professional qualifications of the disapproved nominees and any disapproved nominees for the vacancy thereafter. When the Supreme Court has returned to the Senate three qualified nominees, the Senate shall have 30 days to confirm the appointment of one of them, else the President shall appoint from among them.

A Justice who, by reason of death, retirement, removal, or otherwise, departs active service before the end of the Justice’s eighteen-year term shall be replaced according to this appointment procedure, except that the appointee shall serve as an active Justice for only the remainder of the departing Justice’s term.

Section 4. A Justice serving at the time of the ratification of this Amendment shall, in order of seniority, be deemed to have been appointed in the first available year of the presidency of the most recently serving Presidents of the same political party as the Justice’s appointing President. If there is no such year, the Justice shall be deemed to have retired and a vacancy thereby created.

There shall be a transitional appointment procedure by which any vacancies that exist at the time of ratification are filled. For any year of the 18 years prior to ratification in which no appointment was made or deemed made by this Section, a majority of those Senators belonging to the political party of the President in office for the largest portion of that year shall appoint a Justice, who will thereafter be deemed to have been appointed in that year. Any vacancy arising within two years of ratification from the retirement of a Justice serving at the time of ratification shall be filled by this transitional procedure.