Seating a New Justice¶

A Guide to the FJBAA's Nomination, Selection, and Confirmation Mechanics¶

How to Read This Guide¶

The Federal Judicial Balance and Accountability Act (FJBAA), hereafter "the Act," replaces the binary single-nominee confirmation model with a multi-stage process through which nominees flow -- from the President's initial slate to the Senate floor vote. This guide walks through that process in order, stage by stage.

Understanding how these stages connect matters because each one shapes the next. The number of seats available in a given year determines how many nominees the President must put forward. The pool of eligible nominees is defined by what they have to submit in advance. The slate size rule governs how the Senate will evaluate them. And the Senate's voting mechanics determine who emerges confirmed. These stages are interconnected; none can be understood in isolation.

This guide also flags, at each stage, what distinguishes the Act's approach from current practice. Those distinctions are not incidental -- they are the point. The Act is designed to address specific structural failures in the existing confirmation system, and the design choices at each stage reflect that purpose.

Stage One: How Many Seats Are Available?¶

Before any nomination can be made, one question must be answered: how many justice positions become available in a given year?

That question has a different answer depending on where we are in the Act's implementation schedule. The Act unfolds in three distinct phases, each producing a different number of appointment opportunities.

The Expansion Phase¶

The Supreme Court currently has nine justices. The Act establishes fifteen justice positions aligned with fifteen population-based regional circuits (§ 201(a)). Getting from nine to fifteen does not happen all at once. The Act adds one new justice position in each odd-numbered Act Year -- meaning Act Year 1, Act Year 3, Act Year 5, and so on -- until all fifteen positions are filled (§ 201(c)(1)).

Act Years are anchored to the presidential term following enactment: Act Year 1 is the first year of that term, Act Year 3 is the first year of the next, and so on. Since each four-year presidential term contains two odd-numbered Act Years, each president during the expansion phase makes two expansion appointments per term.

During the expansion phase, each appointment fills a single new seat. The slate for that appointment therefore contains a minimum of three nominees (§ 202(a)(2)). This is the smallest slate the Act ever produces.

The Regular Replacement Phase¶

Twelve years after the first expansion appointment, the first justice appointed under the Act completes active service and transitions to Senior Justice status (§ 201(c)(2), § 202(h)). At that point, the expansion phase gives way to a steady-state replacement cycle: one justice transitions out, one new justice is appointed, in each odd-numbered year.

This is where the math becomes more complex. Fifteen seats cycling through twelve-year terms do not distribute evenly across biennial appointment years. Some odd-numbered years will have only one position available; others will have two or three. If left unaddressed, this would create significant disparities in appointment opportunities across presidential terms.

Appointment Equalization: The Borrowing Rule¶

The Act addresses that asymmetry directly. When the appointment schedule produces three consecutive odd-numbered years in which three positions each become available, one position from the first such year is shifted to the outgoing president in the fourth year of the preceding term (§ 202(d)(1)). The incoming president then loses one of those three, but the outgoing president gains one.

The effect: beginning in Act Year 21, each four-year presidential term includes exactly five appointment opportunities, regardless of which party holds the White House (§ 202(d)(3), § 201(c)(3)).

What's different from current practice? Today, the number of Supreme Court appointments a president makes depends entirely on when justices choose to retire or die -- factors entirely unrelated to the president's democratic mandate. Some presidents make four appointments; others make none. The Act replaces actuarial luck with structural equity: every president, at steady state, works with the same number of appointments.

How Many Appointments Per President?¶

Phase	Act Years (odd)	Seats per appointment year	Appointments per term
Expansion	Years 1-11	1	2
Transition	Years 13-19	2	4
Steady State	Year 21 onward	2 or 3	5

During the expansion phase, every odd appointment year yields exactly one new seat, giving each president two expansion appointments per term. During the transition, two seats become available in every odd appointment year, producing exactly four appointments per term across two consecutive terms (Terms 4 and 5 of the Appointment Schedule). At steady state, odd appointment years alternate between two and three available seats -- the borrowing rule ensures the total across any four-year presidential term always reaches exactly five.

Stage Two: Who Can Be Nominated?¶

With the number of available seats established, the President must identify nominees. The Act does not specify who those nominees must be. Presidential nomination discretion under Article II is explicitly and unconditionally preserved (§ 301(4), § 202(a)(5)). The President may nominate any person the President chooses.

What the Act does specify is what each nominee must provide in order to be placed on a slate. These are not eligibility requirements -- they impose no ceiling or floor on background, credentials, or professional history. They are documentation requirements: each nominee must submit a body of work that allows the Senate and the public to evaluate that person's legal reasoning -- the evidentiary foundation the Senate needs to carry out its constitutional duty of advice and consent in a meaningful way (§ 301(1)).

The Epistemic Diversity Framework¶

Congress made a deliberate finding, codified in § 301(2), that the Court's interpretive capacity is strengthened by "epistemic diversity -- incorporating the perspectives of career judges, legal scholars, experienced legislators, executive branch legal officers, practitioners, and individuals whose professional formation includes direct engagement with the communities and conditions the law affects."

This finding matters because it shapes how the documentation requirements are structured. The Act does not mandate that any particular professional background be represented on the Court. It does not require that a certain number of justices come from academia, or from practice, or from the federal bench. What it does is ensure that the documentation system can accommodate nominees from all of those paths equally -- so that a distinguished circuit judge, a preeminent constitutional scholar, a Solicitor General with decades of argument experience, and a senior appellate practitioner all have a genuine pathway to demonstrate their qualifications.

What's different from current practice? Earlier drafts of the Act included credential requirements -- minimum years of legal experience, mandatory federal appellate judicial service -- that would have disqualified five of the nine current justices. Those requirements were abandoned because they raised Appointments Clause concerns and foreclosed legitimate professional pathways. The documentation approach achieves the same functional goal -- ensuring nominees have evaluable records -- without constraining who the President may nominate.

The Ten Works Requirement¶

Each nominee must submit at least ten distinct works of substantial legal analysis -- self-selected by the nominee as representative of their "best and most characteristic legal reasoning" (§ 302(a)).

The self-selection element is meaningful. Asking nominees to curate their own portfolio reveals something a mandated comprehensive submission does not: which ten pieces of their work the nominee believes best represents how they think. That choice is itself a data point.

The ten works may come from any combination of six qualifying pathways (§ 302(b)):

Judicial works -- opinions, orders, concurrences, or dissents from any federal or state court of record. This is the natural pathway for nominees with judicial experience.
Scholarly works -- law review articles, academic treatises, or scholarly books. This is the pathway for nominees whose careers have been primarily academic.
Advocacy works -- appellate briefs, Supreme Court petitions, or substantive motions filed in federal appellate courts or state courts of last resort. This is the pathway for practitioners who have shaped the law through argument.
Legislative works -- formal committee reports, legislative findings, or legal memoranda produced during service in a legislature. This pathway ensures that nominees who have engaged the law from the legislative side can demonstrate that engagement.
Executive works -- OLC opinions, Solicitor General briefs, or agency legal memoranda produced during executive branch service. This is the pathway for Attorneys General, Solicitors General, and senior agency lawyers.
Professional works -- formal legal opinions or memoranda from private practice demonstrating sustained engagement with complex legal questions. This pathway ensures that accomplished practitioners who never sought public positions are not excluded.

These pathways are not mutually exclusive. Most nominees will draw from more than one. A circuit judge who previously served as Solicitor General and taught a law seminar might submit judicial opinions, SG briefs, and a law review article -- all from different pathways -- within a single ten-work portfolio.

Subject Matter Diversity¶

The portfolio must address at least three of six specified subject areas (§ 302(c)):

Constitutional structure, federalism, or separation of powers
Individual rights and civil liberties
Criminal law and procedure
Administrative law and regulatory interpretation
Statutory interpretation methodology
Private law, including contracts, property, and torts

This requirement ensures that nominees have engaged the breadth of Supreme Court jurisprudence, not just a narrow specialty. A nominee whose ten works address only criminal procedure and nothing else would not satisfy this requirement regardless of how distinguished those works are.

The Judicial Philosophy Statement¶

Beyond the ten works, each nominee must submit a written judicial philosophy statement of at least 2,000 words (§ 303(a)). That statement must address four things (§ 303(b)):

The nominee's interpretive approach to the Constitution and federal statutes
The nominee's views on the role of precedent and stare decisis
The nominee's understanding of the proper relationship between the judiciary and the political branches
Illustrative examples applying the nominee's stated philosophy to specific legal questions, drawn from their submitted works or from established case law

The nominee must also attest that the statement represents their own views, composed without ghostwriting (§ 303(c)).

The statement serves a purpose distinct from the ten works. Works demonstrate how a nominee has reasoned in the past. The philosophy statement asks nominees to articulate how they intend to reason in the future -- and to do so in writing, before confirmation, creating a record.

Attestation of Authorship¶

Each qualifying work must be accompanied by an attestation that the nominee is the sole author or primary drafter. For co-authored works, the nominee identifies their specific contributions (§ 304).

Stage Three: Assembling the Slate¶

The President does not nominate one person per available seat. The Act requires the President to submit a slate of multiple nominees for all available positions simultaneously. This is the structural core of the Act's confirmation redesign.

The Slate Sizing Rule¶

The number of nominees on the slate is governed by a single rule: the slate must contain at least the number of available positions plus two (§ 202(a)(2)). There is no maximum -- the President may include as many nominees as desired above this floor.

Available positions (n)	Minimum nominees (n + 2)
1	3
2	4
3	5

The n + 2 minimum is structurally derived. Under Bloc STAR's sequential round procedure, positions are filled one at a time: in each round, the two highest-scoring remaining nominees advance to a mandatory runoff, the winner is confirmed and removed, and the process repeats. In the final round -- when the last seat is being filled -- at least three nominees must still be under consideration in order for the scoring step to have something to decide. With three nominees remaining, scoring identifies two finalists; those finalists then go to the runoff. With only two nominees remaining (which n + 1 would allow), the scoring step is pointless -- there are no other candidates to rank against, and the procedure collapses to a single-step runoff with the full Bloc STAR structure intact only on paper.

The n + 2 floor is therefore the minimum that keeps Bloc STAR working as designed in every round. The absence of a ceiling reflects that under sequential Bloc STAR, a larger slate does not burden the Senate with simultaneous comparison of all nominees -- it simply means more rounds before the field narrows to two.

The slate is submitted to the Senate no later than ninety days before the commencement of the October Term in the year the positions become available (§ 202(a)(3)).

What's different from current practice? Under the current single-nominee model, the Senate's only option is to confirm or block. A senator who considers the nominee acceptable-but-not-ideal has no way to register that nuance. The slate model transforms this dynamic: the Senate selects from a field rather than gatekeeping a single candidate.

Carryover Nominees¶

The process also provides a mechanism for nominees who appeared on a prior slate but were not selected. These are called carryover nominees (§ 3, definition 18).

A carryover nominee may be included on a subsequent slate at the President's discretion, provided that no more than five years have elapsed since the nominee's original documentation submission (§ 202(f)(1)(A), § 202(f)(3)).

What a carryover nominee must submit: - An updated professional biography reflecting changes since the prior nomination (§ 202(f)(1)(B)) - An optional supplemental statement of no more than 500 words (§ 202(f)(1)(C))

What a carryover nominee does not need to resubmit: - The original ten works (§ 202(f)(1)(D)) - The judicial philosophy statement (§ 202(f)(1)(D)) - The attestation of authorship (§ 202(f)(1)(D))

Carryover eligibility runs from the date of the original documentation submission -- not from the most recent slate appearance (§ 202(f)(3)). A nominee whose five-year window has lapsed must complete the full documentation process to appear on any subsequent slate (§ 202(f)(4)).

The carryover mechanism serves two purposes. For nominees, it provides a genuine career path through the process rather than a single high-stakes audition. For presidents, it creates an incentive to nominate genuinely strong candidates from the outset, since those candidates can be brought back if the Senate's selection goes another way.

Stage Four: Senate Evaluation¶

Once the President submits the slate, the Senate's evaluation process begins. The Act establishes a structured timeline governing each step.

Public Disclosure (Within 72 Hours)¶

All nomination materials for every nominee on the slate -- the ten qualifying works, the judicial philosophy statement, the professional biography, and the attestation -- are made publicly available within seventy-two hours of the Senate's receipt (§ 305(a)). Not just the Judiciary Committee; the public.

Completeness Determination (Within 14 Days)¶

The Senate Judiciary Committee has fourteen days to determine whether the submitted record for each nominee satisfies the requirements of Title III (§ 305(b)(1)). This is a completeness check, not a substantive evaluation -- the Committee is confirming that the nominee submitted the required number of works, that the philosophy statement meets the word-count floor, that subject matter diversity is satisfied, and that attestations are present.

If a nominee's record is incomplete, the President and nominee are notified of the specific deficiencies (§ 305(b)(2)). That nominee has fourteen additional days to cure the deficiency. If the record is still incomplete after that window, the nominee is removed from the slate (§ 305(b)(3)).

If removal drops the slate below the minimum required under the sizing rule, the President must submit a supplemental nominee within fourteen days (§ 305(b)(3)). The process does not proceed with an undersized slate.

Public Review Period (21 Days)¶

No hearings may commence until at least twenty-one days after the Judiciary Committee certifies all nomination records as complete (§ 305(c)). This period exists for a reason: the public and the press should have meaningful time to read and react to the nominees' documentation before senators begin questioning them.

Judiciary Committee Hearings¶

The Committee conducts hearings at the following pace (§ 305(d)):

Full nominees: One full day of hearings per nominee, with morning and afternoon sessions.
Carryover nominees: An abbreviated hearing of no more than one half-day, focused on developments since the nominee's prior appearance.

The day-per-nominee structure matters at scale. A slate of five nominees means five hearing days -- a substantial investment of Committee time, but one spread across the full field rather than concentrated on a single person.

The callback mechanism. The chair and ranking member of the Judiciary Committee may jointly agree to recall any nominee for one additional half-day session (§ 305(d)(3)). If the chair and ranking member cannot agree, a three-fifths vote of the full Committee is required to authorize the callback. No nominee may be subject to more than one callback (§ 305(d)(4)). The bipartisan structure of the joint-agreement option provides a meaningful safety valve without allowing callbacks to become an obstruction tool.

The 120-Day Deadline¶

The Senate must act on the slate -- either by completing the Bloc STAR vote or by formally rejecting the slate -- within one hundred twenty days of receiving it (§ 202(g)). This deadline is statutory, not a Senate rule. It binds the Senate to act.

Stage Five: Bloc STAR Voting¶

Following the completion of hearings, the Senate conducts the Bloc STAR vote (§ 305(e)). Bloc STAR is a multi-winner scored voting method. The key thing to understand about it upfront is that it does not simply rank nominees by their scores and confirm the top n. It fills each available seat one at a time, through sequential rounds, each of which includes a mandatory head-to-head runoff. This distinction matters -- it is what gives Bloc STAR its structural properties.

Step One: Scoring (Done Once, Used Every Round)¶

Before any rounds begin, each senator assigns every nominee on the slate a score from 0 to 5 (§ 202(b)(1)(A)):

0: No support
5: Strongest support
Any integer in between reflecting the senator's degree of support for that nominee

Every senator scores every nominee. There is no option to abstain from scoring a particular nominee or to score only the nominees a senator favors.

Each senator's scores are recorded and published as part of the public record (§ 202(b)(1)(B)). This is consistent with every other Senate vote being a matter of public record, and it matters: senators cannot quietly favor a nominee from the opposing party's preferred list without that being visible. These original scores are used in every subsequent round without modification -- senators do not re-score for each seat.

What's different from current practice? Binary confirmation forces senators into an all-or-nothing position on a single nominee. A senator who considers a nominee acceptable -- not their first choice, but not disqualifying -- has no way to register that. Under Bloc STAR, that senator can give the nominee a 2 or a 3. The scoring is inherently comparative rather than absolutist, which also reduces the pressure for strategic lockstep voting: a senator can give a president's nominee a 2 rather than a 0 without facing accusations of betrayal.

Step Two: Sequential Rounds (One Seat Per Round)¶

Available positions are filled one at a time. Each round follows the same three-step process (§ 202(b)(1)(C) through (G)):

1. Identify the two finalists. For each round, aggregate scores are summed across all voting senators for every nominee still under consideration. The two nominees with the highest aggregate scores become the finalists for that round (§ 202(b)(1)(D)).

2. Conduct the automatic runoff. The two finalists go head to head. Each senator's ballot counts as one vote for whichever finalist that senator scored higher. If a senator gave both finalists the same score, that ballot registers no preference and counts toward neither finalist. The finalist preferred by the greater number of senators is confirmed to fill one available position (§ 202(b)(1)(E)).

The runoff is mandatory -- it happens every round, not only when scores are close. This is the heart of what distinguishes Bloc STAR from simple score voting. A nominee can lead the aggregate scoring and still lose the runoff if more individual senators, on a head-to-head comparison, prefer the other finalist. The runoff tests breadth of support, not just intensity.

3. Remove the winner and repeat. The confirmed nominee is removed from consideration (§ 202(b)(1)(F)). If additional positions remain, the procedure repeats from Step 2 using the same original scores, among the remaining nominees, until all available positions are filled (§ 202(b)(1)(G)).

To make this concrete: suppose two seats are available and five nominees -- A, B, C, D, E -- are on the slate. Round 1 produces the two highest scorers as finalists; a runoff between them confirms one, who is then removed. Round 2 runs the same process among the remaining four nominees, producing the second confirmed justice. The winner of Round 1 played no role in determining the outcome of Round 2.

Why sequential rounds matter. A system that simply confirmed the top n scorers would never test whether those nominees actually have the broadest support -- a nominee beloved by one ideological bloc and actively opposed by everyone else might outscore a nominee with broad, moderate support from across the chamber. The sequential runoff structure prevents that outcome. Each seat is filled by whoever wins a majority-preference comparison, not just whoever accumulated the most aggregate points.

Tie-Breaking¶

If two or more nominees are tied in aggregate score for finalist designation, the tie is broken in favor of the nominee preferred -- that is, scored higher -- by the greater number of senators in a pairwise comparison among the tied nominees (§ 202(b)(2)(A)).

If the two finalists are preferred by an equal number of senators in the automatic runoff, the tie is broken in favor of the finalist with the higher aggregate score (§ 202(b)(2)(B)).

If a tie persists after both of those steps -- meaning the nominees are equal in both aggregate score and pairwise preference -- the tie is broken by lot, conducted by the Presiding Officer of the Senate (§ 202(b)(2)(C)).

The Senate may, under its constitutional authority to determine its own rules of proceedings, adopt alternative tie-breaking procedures that supersede these statutory defaults (§ 202(b)(3)).

Confirmation¶

A nominee confirmed through the Bloc STAR procedure is deemed to have received the advice and consent of the Senate for purposes of Article II of the Constitution (§ 202(b)(4)). No separate floor vote on individual nominees is required (§ 202(b)(5)).

Stage Six: Slate Rejection¶

The Senate retains the constitutional authority to reject a nomination slate in its entirety -- to decline to conduct the Bloc STAR vote at all and send the slate back (§ 202(c)(1)).

The threshold and procedures for slate rejection are determined by the Senate under its own constitutional authority to determine the rules of its proceedings (§ 202(c)(2)). The Act imposes no supermajority requirement or other constraint on this power. The Senate's advice-and-consent authority is fully preserved.

What Happens After Rejection¶

If the Senate rejects a slate:

The President must submit a new slate within thirty days (§ 202(c)(3), § 306(a)).
No nominee from the rejected slate may appear on the immediately subsequent slate (§ 202(c)(4), § 306(b)). They may appear on later slates, subject to the carryover provisions and five-year documentation window.

If the Senate rejects a second consecutive slate for the same appointment cycle, the exclusion provision does not apply to the third or subsequent slates (§ 306(c)). The President may include any eligible nominee -- including those excluded from the second slate.

Why Rejection Is Structurally Irrational¶

The Act preserves rejection authority while creating structural conditions that make exercising it counterproductive. A Senate that rejects a slate gains nothing from doing so: the seat does not remain open for a future president, no leverage is extracted, and -- critically -- the Senate loses access to whatever nominees it might have found most acceptable on the rejected slate. Those nominees are excluded from the very next slate. The opposition may have just eliminated its preferred options.

The structure inverts the current incentive. Under the single-nominee model, blocking is costless -- the Senate simply waits. Under the slate model, rejection triggers immediate resubmission, excludes preferred nominees, and exhausts the exclusion mechanism after two consecutive rejections. The architecture does not rely on senators to act in good faith; it creates conditions under which good-faith engagement is the strategically rational path.

Stage Seven: After Confirmation¶

Oath Administration¶

Justices take the oath of office prescribed by law before commencing active service (§ 206(a)). The oath is administered by the Ceremonial Chief Justice, or in their absence, by the Co-Chief Justice with the longest tenure in active service (§ 206(b)).

The Mutual Swearing-In Requirement¶

When two or more justices are confirmed to commence service in the same year, they must be sworn in during the same ceremony (§ 206(c)). No oath administered to a justice commencing service in that year is valid unless all justices confirmed for that year are present and sworn at the same ceremony.

The exception: if a confirmed justice dies, becomes permanently incapacitated, or withdraws before the ceremony, the mutual requirement does not apply with respect to that justice (§ 206(d)).

The purpose of this requirement is structural. It prevents strategic timing of oath ceremonies -- a president cannot rush one confirmed justice onto the bench while delaying another. All justices confirmed for a given year begin active service together, and the twelve-year career clock starts for all of them on the same day (§ 206(e)).

Justices must take the oath after the outgoing justices have transitioned to Senior status and before the first oral argument of the October Term beginning in that year (§ 206(f)).

Non-Selected Nominees¶

Nominees who appeared on the slate but were not selected become eligible for carryover status. If no more than five years have elapsed since their original documentation submission, they may be included on a subsequent slate at the President's discretion -- with the abbreviated submission and half-day hearing process described in Stage Three and Stage Four above (§ 202(f)).

The Transition Period¶

The process described above reflects the Act at steady state. The transition from the current nine-justice Court to a fifteen-justice Court under the Act's career structure involves several features worth understanding separately.

Expansion Appointments¶

During the expansion phase, each biennial appointment fills a single new seat. The slate for a single-seat appointment contains a minimum of three nominees (§ 202(a)(2)). All other stages -- documentation requirements, Senate evaluation, Bloc STAR voting, the 120-day deadline -- apply in full even to expansion appointments.

Legacy Justices¶

The nine justices serving on the effective date of the Act are not subject to the three-phase career structure. They may continue in active service indefinitely, voluntarily elect Senior Justice status at any time, or elect to enter the career structure through the opt-in mechanism (§ 403(b)).

The Legacy Chief Justice. Chief Justice Roberts occupies a unique position. The Act does not alter his role. He continues as Chief Justice for the remainder of his tenure, retaining all ceremonial functions and administrative authority. He is not subject to the twelve-year active service limit and is not subject to the opt-in mechanism (§ 403(c), § 204(c)). Co-Chief Justices appointed under the Act who reach their eleventh year while he remains in office share administrative duties with him pursuant to Judicial Conference rules.

The Legacy Associate Justice Opt-In¶

Any Associate Justice serving on the effective date (other than the Legacy Chief Justice) may voluntarily elect to enter the Act's career structure (§ 403(d)(1)). To do so, the justice files a written election with the Administrative Office, selects from a list of available Co-Chief Justice slots, serves a two-year capstone as Co-Chief Justice, and then transitions to Senior Justice status.

When two or more justices seek the same slot, priority goes to the oldest justice by date of birth (§ 403(d)(4)(B)). The mechanism is entirely voluntary -- declining carries no consequence (§ 403(b)). A justice may withdraw before commencing Co-Chief service (§ 403(d)(7)).

The opt-in does not create additional presidential appointment opportunities. Any seat vacated through the opt-in mechanism flows through the vacancy coverage system (§ 403(d)(5)), not through an accelerated presidential appointment.

Vacancy Coverage During the Transition¶

Before sufficient Senior Justices exist to populate the Ethics Review Panel and vacancy coverage rotation, the Bridge Panel of retired circuit chief judges selected by lottery serves as a supplemental body (§ 508). On the appointment side, vacancies that occur during the transition -- whether through Legacy Justice departure or unexpected active-service vacancy -- are covered by Senior Justice lottery rotation for each October Term until the seat's next regularly scheduled biennial appointment (§ 205). Vacancies do not create additional presidential appointment opportunities at any stage of the Act's implementation (§ 205(f)(1)).

Revision history available in the raw file.

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Prepared by Albert Ramos for The American Policy Architecture Institute