The quickest way to create deadlock on the court would be to not fill Kennedy’s seat. But to add fluidity and dynamism to the court in the future, each subsequent Congress (starting with the 116th) could add two justices, one agreeable to the Senate majority and one agreeable to the minority, each for an 18-year term, until the court is at 16 members. As the court grows, let a random draw of four justices picked by Republicans and four picked by Democrats decide each case. Regularizing appointments would further drain the stakes of any one nomination and ensure that, as Chief Justice John Roberts once put it while arguing for 15-year term limits, “federal judges would not lose all touch with reality through decades of ivory tower existence.”
The case for a detente in the confirmation wars accepts that the “the other side started it” is a turtles-all-the-way down argument, with the turtles sitting on top of the Judiciary Act of 1789, which first set the number of justices at six. Or maybe the Judiciary Act of 1801 (repealed in 1802), which appointed a slew of “midnight” Adams administration judges and shrunk the number of justices down to five, so the incoming Jefferson administration wouldn’t be able to appoint a justice. Or maybe Marbury v. Madison (1803), which expanded the power of the courts to nullify legislation on constitutional grounds.