A Bench for the Bench
A structural proposal for Supreme Court succession
Introduction: How I’m Approaching This
First, to be clear, I’m not writing this as a constitutional scholar, a legal academic, or a political strategist. I’m writing from the perspective of how I approach any system that produces results that no longer meet the evolving requirements for keeping the system in place.
For most of my professional life, I’ve been brought in when something technically works but no longer meets the organizational needs. Processes are in place. Rules exist. Everyone involved can point to any number of justifications for why things are done the way they are. And yet, the outcomes are increasingly divorced from the purpose the system was meant to serve. The organization has evolved, but the technology has not. So now, “because we’ve always done it this way,” becomes the mantra. The problem is, they’ve always done it this way, because that’s the way the system was designed to do it. No flexibility. No future proofing. Code driving decisions, not the other way around.
When this happens, the instinct is usually to argue about people: who’s working around the process, who is governing the data, who would behave better if only the systems and processes were up to date. Pointing fingers can be emotionally self-supporting, albeit in most cases, truly pointless (apologies). Systems don’t respond to scolding. They respond to inputs and procedures. When the inputs evolve, but the procedures don’t, stagnation and frustration result. It’s doubtful those two words were on the list of system requirements at the beginning of a project, but I’ve made a good career from dealing with them.
So rather than litigating ideology, this essay looks at structure. The Succession Plan for the Supreme Court is the system. Nominees are the inputs. Selecting and confirming candidates are the procedures. The individuals tasked with selecting and confirming candidates are the users. A vetted, qualified Supreme Court Justice is the outcome. And every person living within the Supreme Court’s jurisdiction is a stakeholder. Seems straightforward: system, input, procedures, users, outcomes, and stakeholders.
This isn’t about whether any particular justice deserved their seat, or whether past confirmations were “fair.” It’s about whether the machinery is still fit for purpose in a political environment that looks very different from the one for which it was designed. But, here’s a more direct question I have asked numerous times in the past: if we were designing this system today, knowing what we now know, would we build it this way?
Problem Statement: Where the System Breaks
At a high level, the Supreme Court succession process seems straightforward. A vacancy occurs. The President nominates a candidate. The Senate provides “advice and consent” via confirmation hearings. A justice is seated. System, input, procedures, users, and outcomes all wrapped up in a single paragraph. Clean, compact, and tidy. Rinse and repeat whenever there’s a vacancy.
The problem is that this description only works in a world where timing is neutral, motivations are aligned, and political actors behave as if their goal is institutional sovereignty rather than partisan advantage. That world no longer exists—if it ever really did. And these days, it’s not even a problem isolated to a single ideology. It’s a problem with whoever is holding the deck when the deal begins.
Typically, Supreme Court vacancies are rare. Lifetime tenure has that effect. Only with retirement or death are we infrequently reminded of how this is supposed to work. In recent years, Supreme Court vacancies have been oddly more frequent. They are now high-visibility events, each carrying enormous consequences, not just for the Court’s direction, but for electoral politics, fundraising, media cycles, and long-term party strategies. As the stakes have risen, so has the motivation to manipulate the process. What that looks like in the real world is familiar by now.
Vacancies are left open for months, sometimes close to a year. Nominees are evaluated less on qualifications than on ideological positioning. Confirmation hearings drift from serious interviews into performative nonsense. Retirement decisions are timed to align with friendly administrations. The calendar—rather than capability—drives decision-making.
From a systems perspective, these are not irregularities—bugs. They are predictable behaviors produced by the structure itself. In systems, these are called exploits—weaknesses in the data or procedures that allow manipulation outside the intended design. “We didn’t design for someone to do this thing, but we also didn’t design for someone to not do it.”
The current model ties maximum political leverage to minimum frequency. Because vacancies are infrequent and unpredictable, each one becomes a zero-sum contest. When the opportunity finally appears, nobody has an incentive to act moderately. Delay, acceleration, and obstruction are not bugs in the system; they are rationalized responses to the incentives created by the exploits.
For the Court, empty seats mean increased workload and uncertainty. For the Senate, confirmations become time-sensitive overrides that crowd out actual legislative agendas. For presidents, judicial appointments become legacy-defining gambles. And for the public, watching all of this on every possible screen, the Court begins to feel less like an independent authority and more like a long-term political pet.
This has a very real societal impact. Public confidence does not die suddenly; it erodes gradually, and it is a long, hard process to recover those layers. Each high-profile standoff reinforces the perception that outcomes are prescribed by politics rather than by rational law. Even carefully reasoned, legally sound decisions are filtered through a mesh of suspicion about how the justices arrived at them.
From a system health perspective, that loss of trust is a critical failure. Courts derive authority from legitimacy. When legitimacy weakens, compliance carries resentment, and respect becomes conditional. When the system design rules cannot produce reliable results, the system cannot be trusted. Likewise, when societal norms are not enforceable, they become voluntary. Every empty seat raises the stakes, and with that, the incentive to forego the norms and do what is desired rather than required is also amplified.
There’s no value in blaming actors for behaving rationally within a weakly designed system. It doesn’t fix anything. If the desired outcomes are to reduce volatility, restore trust, and stabilize succession, then it doesn’t matter who did what. What matters is how we tune the system to produce reliable outcomes for all, not just desired outcomes for some.
That sets the stage for the more important question: what would a system look like if it were designed to minimize these failure modes rather than ignore them?
Expected Outcomes: What “Better” Actually Means
In systems design, we like to ask, “What does ‘done’ look like?” In this case, we’re not looking for done. We’re looking for better. So, let’s take a moment to define success. Otherwise, any redesign risks solving the wrong problem—or worse, optimizing for what feels “good enough” but doesn’t actually improve system reliability.
The goal here is not to eliminate disagreement, controversy, or political influence altogether. That would be unrealistic, arguably dishonest, and frankly impossible. The Supreme Court sits at the intersection of law, society, and authority. Politics is on every corner of that intersection. These aren’t guardrails, just realities—system obstacles we need to design around or through to lessen their direct impact.
The goals. Reduce volatility, lower incentives for manipulation, and restore procedural legitimacy, even when meaningful outcomes are questioned.
At a minimum, a healthier succession system should produce the following outcomes.
First, predictability. Vacancies should no longer function as political emergencies. The system should behave the same way irrespective of when a vacancy occurs—during an election year, a lame-duck session, or the middle of a term. When timing stops being a weapon, much of the surrounding noise loses its volume.
Second, continuity. The Court should not be left shorthanded for extended periods. Prolonged vacancies introduce operational delay, impact case selection, and inject unnecessary uncertainty into the legal system. This isn’t a “John’s out sick, somebody else file these papers” situation. This is a serious, autonomous institution forced to operate at 89% efficiency while still delivering the same volume and quality of work.
Third, reduced influence per vacancy. When each appointment is treated as a once-in-a-generation event, rational actors will behave accordingly. A healthier system distributes influence over time, lowering the motivation to exploit any single event. Removing the certainty of an immediate effect means more measured behavior across the board.
Fourth, procedural fairness that is visible, not just implied. Even when people strongly disagree with the Court’s decisions, they should be able to look at the process and say, “That was handled consistently.” Trust doesn’t require agreement; it requires coherence.
Fifth, resilience to bad faith without depending on good faith. A system that only works when everyone behaves within the norms tends to fail at scale. A durable design assumes that individual actors will pursue political advantage, yet still produces acceptable outcomes even when they do.
Taken together, these outcomes define a system that is boring in the best possible way. Fewer emergencies. Fewer toe-to-toe moments. Less incentive to push norms to their breaking point or ignore them altogether. More continuity, more consistency, and fewer reasons for any individual actor to believe that everything hinges on one roll of the dice.
These outcomes also provide a useful filter. Any proposed solution that doesn’t soundly improve predictability, continuity, legitimacy, and resilience—no matter how well-dressed it is—probably doesn’t address the core problem.
With those goals established, we now consider the boundaries that manage the playing field for any solution. Because there are lines that cannot—and should not—be crossed.
Boundaries and Constraints: The Lines That Cannot Move
Any discussion of redesigning a system explicitly outlined in the Constitution must start by clearly stating what is not on the table. Without hard boundaries, any well-intentioned system design begins to sprawl, creating more challenges and requiring more changes. We don’t want that when we’re talking about systems that impact everyone. And these are hard rules, not guidelines. The system must exist within them and be supported because of them.
At the top of the list, Article III stands. Lifetime tenure for seated justices is not a flaw to be engineered away; it is a foundational safeguard that ensures judicial independence. Once a justice is seated on the Supreme Court, they serve for life or until voluntary retirement, subject only to impeachment for failing to follow the doctrine of “good behavior.” Anything else would require a constitutional amendment, and we’re not looking to get that radical.
Second, the size of the Court remains unchanged. This is not a court-packing scheme by another name. Playing with the number of justices introduces its own set of incentives and opportunities for manipulation, none of which address the underlying succession problem. The issue here is not how many seats exist, but how empty seats are filled.
Third, Article II stands. The separation of powers must be preserved. The President retains the authority to nominate. The Senate retains the responsibility to confirm. No overrides, and no shortcuts.
Fourth, there are no retroactive corrections. Past confirmations stand. No sitting justice is at risk. No legitimacy is questioned after the fact. Whatever flaws existed in prior processes, reopening them would only compound instability and further undermine public confidence.
Fifth, no ideological filters or behavioral purity tests. A redesign cannot depend on predicting how a justice will rule or on enforcing alignment with shifting political goals. The system must be as neutral to ideology as possible and resilient to disagreement without eliminating disagreement. If it only works when everyone agrees on outcomes, it doesn’t work.
Together, these constraints do not limit creativity in the design, but they do provide scaffolding. They ensure that what is designed is a structural adjustment, not a constitutional rewrite. The goal is continuity, not revolution. Within these boundaries, however, there is still meaningful room to improve succession—specifically by addressing timing, incentives, and predictability without altering authority or tenure.
Now that we know what we need and what we cannot override to get it, we can turn to the solution itself: how to fix the process within the rules that must remain intact.
Proposed Solution: A Standing Bench for the Supreme Court
We have a defined problem. We have defined boundaries. Now we need a solution.
At its core, the proposal is simple: create a standing bench of pre-confirmed Supreme Court justices who wait in line to be seated as vacancies occur—a bench for the bench.
Under this model, a fixed number of bench seats—five, for the sake of discussion—would exist at all times. These individuals would be nominated by the President and confirmed by the Senate using the same advice-and-consent process that exists today. The difference is timing.
Once confirmed, a bench justice would not immediately join the Supreme Court. Instead, they would enter a first-in, first-out queue at the end of the line. When a vacancy occurs due to retirement or death, the next justice in line ascends automatically—the bench justice who was confirmed earlier than the others. No additional confirmation process. No delay. No opportunity for last-minute leverage. No predictable political alignment. No stacking the Court.
This single change—decoupling confirmation from vacancy—removes the most volatile incentive in the current system. No one can predict when the most recently confirmed bench justice will take their seat on the Court. Confirmation becomes more about qualification and less about timing. Politics will still play a part in the confirmation process, but with far less impact on immediate legislation or pending cases.
Here’s an example. A bench justice confirmed in 2029 may not take a seat until 2037, under a different president, Senate, and political climate than the one that confirmed them. At the time of confirmation, no one could have known which vacancy they would eventually fill—or which cases would be before the Court when they arrived. That uncertainty is not a flaw. It is the whole point.
Bench justices would not be idle while waiting. Where possible, they would continue serving in their existing roles on federal appellate or district courts. If a nominee is not already a sitting judge, they would be temporarily assigned to a federal court during their time on the bench. This maintains judicial readiness, preserves accountability, and ensures that bench service is an active role rather than a holding pattern. This also provides necessary experience for confirmed bench justices who have never served in a similar role. They arrive at the Supreme Court with more capability than they had when selected.
From a systems perspective, this approach shifts risk away from moments of crisis and distributes it over time. Presidents still nominate. The Senate still confirms. But neither can predict exactly when a bench justice will be seated—or under which future political environment. This uncertainty reduces the incentive to treat any single appointment as a legacy moment.
The result is a succession process that behaves consistently regardless of circumstance. Vacancies are filled immediately. The Court remains whole. The political temperature around any given transition drops because the outcome was determined long before the vacancy occurred.
Importantly, this does not change who has authority. It changes when that authority is exercised and how its effects propagate through the system.
In practical terms, the bench functions the same way a well-designed business-continuity system functions in any critical operation. You don’t conduct tests in the middle of a crisis. You prepare in advance so that when something unpredictable happens, the response is automatic. A power outage, a server crash, an empty robe on a seat—the system is prepared, tested, and ready to continue.
With the core mechanics in place, the next step is to ensure that this system remains viable over time—preventing stagnation, gaming, or symbolic appointments. Future-proofing. That requires a small set of durability modifications, which we’ll address next.
Modifications to Ensure Durability
Any system that works on start-up but degrades over time is not a solution—it’s a stopgap. If a standing bench is meant to restore confidence, it has to be functional across administrations, political cycles, and shifting social dynamics. That means designing for the things people will inevitably try to do once the system is in place. It means plugging the holes before someone finds them.
First, time limits on bench service. A bench justice should not wait indefinitely for a seat. Once on the Court, a justice has a lifetime tenancy, but a bench justice waiting for their forever seat shouldn’t have the same non-expirable duration. A fixed term—ten years, for example—creates natural turnover and prevents the bench from becoming a parking lot for nominees whose relevance, health, or interest in the seat may drift over time. If a bench justice is not seated within that window, their appointment expires, the queue advances, and the process continues to fill the back of the bench. A justice whose bench appointment has expired may be reconfirmed by a later administration, but they would reenter the bench at the back of the queue.
Second, age limits at the time of bench appointment. Landing an already aged justice onto the bench doesn’t make sense if the above time limit puts them well beyond a reasonable age before they get their robe. Applying an upper age cap—such as 60—helps ensure that justices who eventually take a seat are still within a reasonable range of the working-age population affected by their decisions. And again, this applies only to bench appointments, not to seated justices, and does not alter lifetime tenure once a justice joins the Court.
Third, active judicial service while waiting. Bench service must require continued participation in the federal judiciary. Justices need to remain accountable to existing codes of conduct, ethical requirements, and performance expectations. This guards against symbolic appointments and ensures that bench justices remain engaged with evolving law and practice.
Fourth, clear vacancy-handling rules. If a bench justice is removed through impeachment, resigns, or becomes unable to serve, their place in the queue is vacated. Again, the queue moves forward, and a new bench appointment is made at the back of the line through the normal nomination and confirmation process. No special cases. No discretionary reshuffling. No cutting in line.
Fifth, limits on strategic obstruction. While the Senate retains its constitutional authority, prolonged refusal to fill bench seats should become pointless. Blocking appointments today restricts influence in the future. However, if they can, eventually, somebody will, even if the delay is less strategic and more self-limiting. Implementing rules that require the bench to be full within a reasonable timeframe after a vacancy—six months, for example—further reduces the strategic purpose of a delay.
Together, these modifications reinforce the bench as a living system. They ensure renewal without instability, accountability without politicization, and flexibility without surrendering structure. At this point, the proposal is no longer just an idea. It’s a system with guardrails, expiration dates, and built-in failure management.
Which brings us to the final step: acknowledging the risks that remain—and addressing them directly.
Challenges, Risks, and Mitigations
Now we have to look at where this system design could fail. Ignoring risks doesn’t make them disappear. They will surface eventually, and usually at the worst possible time. A proposal to refit a political process is no exception. The question isn’t whether challenges exist. It’s whether they are identifiable, manageable, and preferable to the failures of the current system.
Constitutional Interpretation
The most obvious concern with this idea is constitutional ambiguity.
Some may argue that confirming justices for future vacancies overreaches the intent of Article II or Article III. Original intent is often a thorny issue in constitutional analysis. However, while the Constitution clearly defines nomination, confirmation, and tenure, it says nothing about timing. That lack of definition creates both flexibility and uncertainty.
Mitigation of this issue comes from an acknowledgement of the articles as written. The bench does not alter tenure, authority, or the composition of the Court. It preserves the President’s nomination power and the Senate’s confirmation role exactly as written. What changes is sequencing, not authority. That distinction matters, and it is something the courts themselves are equipped to evaluate if challenged.
The good news is that all of this can be handled through ordinary legislation, not a constitutional amendment—unless the sitting Supreme Court decides that the legislation itself is unconstitutional. There’s no small irony in the Court deciding whether a succession plan for itself is valid.
Cold-Start Dominance
What happens with the first bench?
If this proposal were enacted all at once, the sitting President and Congress could theoretically fill every bench seat in one pass. That would essentially become another form of stacking, but for a future Court.
In systems design, this is called a bootstrapping risk. Turning on a new system creates a unique form of chaos; in this case, front-loading a partisan team of bench justices. The solution is a gradual ramp-up.
Instead of giving the sitting administration free rein to fill the bench, a limit of two bench seats per term applies, unless a Supreme Court vacancy occurs during that term. This forces cross-administration action and helps maintain accountability and avoid early capture of the Court for future administrations. This also staggers bench service timelines, avoiding a scenario in which multiple bench justices reach the end of their service window in the same term. For example:
Term 1: up to two filled bench confirmations
Term 2: up to two more confirmations
Term 3: up to two more confirmations
Bench reaches full size (e.g., five seats) over multiple terms and administrations.
No more than 2 bench justices would expire within a single term.
In this approach, the bench grows gradually. No single administration controls every appointment, and the system reaches a steady state without recreating the problems the system was designed to solve.
Judicial Drift While Waiting
A bench justice may wait years before being seated. During that time, their legal philosophy, health, or public reputation could change. They may even lose interest in taking on the job.
This is a valid concern, and it exists under the current system. Justices are often nominated based on perceived future alignment rather than immediate necessity, such as pending contentious legislation. The bench model mitigates this risk by requiring active judicial service, enforcing ethical standards, and imposing time limits on bench tenure. Drift becomes bounded, observable, and self-correctable on the part of the waiting justice.
Opinions can and will change over time. The bench model removes the immediate impact of partisan actors finding themselves in a robe.
Strategic Obstruction by the Senate
A Senate majority could still attempt to block nominations, leaving bench seats unfilled.
The difference is motivation. In the current system, obstruction can produce immediate benefits by tabling the Senate’s responsibility until it can ensure a party-friendly candidate. Under a bench model, delay reduces future influence rather than enhancing immediate leverage. While obstruction doesn’t disappear, it becomes self-limiting. Additional guardrails—such as required timelines for hearings—can further blunt this tactic without removing constitutional authority.
Perception of Elitism or Insulation
Another risk is public perception. A reserve bench of justices could be framed as elitist or overly insulated from democratic oversight.
Mitigation comes through visibility and accountability. Bench justices remain active judges, subject to scrutiny, ethics rules, and public records. Their work is visible. Their qualifications are tested over time, not hidden. In many ways, this increases transparency compared to one-time confirmation performances followed by lifetime disconnection from the public impact of their decisions.
Complexity and Institutional Inertia
Finally, any structural change introduces complexity, and adoption is often sluggish at first as people learn the new way. Institutions resist change, especially when existing processes are familiar—even if flawed.
But complexity alone is not a reason to avoid reform. The current system is already complex, volatile, and brittle. The fractures have been made abundantly clear to anyone paying attention to the news cycle. The question is not whether the bench model is perfect, but whether it is more stable, more predictable, and less exploitable than what exists today.
In that comparison, the risks of change are real—but they are visible and largely manageable. Acknowledging these challenges doesn’t mean the proposal is weak. It strengthens it by treating reform as an engineering effort rather than a moral argument. The risks of doing nothing are familiar, escalating, and increasingly normalized. We have to ask ourselves if this is the “normal” we want.
Which leaves one final question: what do we do with this idea now?
Closing: An Invitation, Not an Opening Volley
This essay isn’t a call to action, necessarily. It isn’t a demand for change. Leave your torches and pitchforks in the shed.
This is a proposal. It’s a “what-if” idea that just might help improve some of what we’re struggling with as a society today. A starting point for discussion. We’re not fixing people; we’re fixing systems. The people challenges will fix themselves once we have systems that prevent misuse. Maybe.
It isn’t meant to solve every problem surrounding the Supreme Court, nor does it pretend that structure alone can eliminate politics from a system designed to sit at the intersection of law and leadership. What it does claim is something else—and, I’d argue, more achievable: that we can design a succession process that behaves more predictably, rewards consistency over one-upmanship, and restores a seed of trust in an institution that depends on legitimacy to function.
And maybe the standing bench model is not the right answer. But it is an option that works within constitutional boundaries, acknowledges human frailties, and attempts to correct known failure modes rather than simply shrug them off. If nothing else, it demonstrates that the current system is not the only system available to us.
If you don’t think this would work, I want to know where it breaks.
If you see constitutional risks I’ve understated, call them out.
If you have a better structural idea—one that reduces volatility without sacrificing institutional independence—I’m genuinely interested in hearing it.
What I’m not interested in is continuing to accept a process that predictably produces chaos and then acting surprised when it does it again, and again. So, instead of arguing about ideologies, let’s ask whether the machinery itself deserves a rethink. Not to remove disagreement, but to make disagreement less destructive. We’ll never make it perfect, but why wouldn’t we try to make it more resistant to abuse?
So, consider this an open invitation: challenge it, stress-test it, improve it, or replace it with something better. It’s a system. It can be improved. Let’s do that.
But let’s not pretend the current system is working as intended.
Let’s fix this thing.