Bench Memos

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Gerhardt’s and Painter’s Extraordinary Confusion—Part 1


Law professors Michael Gerhardt and Richard Painter have combined to produce a hilariously confused ACS Issue Brief titled “‘Extraordinary Circumstances’: The Legacy of the Gang of 14 and a Proposal for Judicial Nominations Reform.” As its title suggests, their paper has two main parts. The first part purports to provide a history of the legacy of the so-called Gang of 14 agreement. The second part offers their proposal for reform of the confirmation process. I will address the first part of their paper in this post and the second part in a follow-on post.

As those faithful readers who have been with Bench Memos from its beginning will recall, Senate Republicans in May 2005 were exploring using their majority power to eliminate the filibuster of judicial nominees. Called by some the “nuclear option” and by others the “constitutional option,” this proposed reform of the Senate cloture rule arose in response to Senate Democrats’ unprecedented widespread resort to the filibuster to obstruct the confirmations of some ten of President Bush’s federal appellate nominees. (For example, Democrats defeated seven separate cloture petitions on the nomination of Miguel Estrada to the D.C. Circuit.)

The Gang of 14 agreement, signed by seven Republicans and seven Democrats on the eve of a vote on cloture reform, negotiated an end to the filibuster confrontation. On the one hand, the signatories to the agreement committed to vote to invoke cloture on three specified nominees, and, as to “future nominations,” they committed to the proposition that “Nominees should be filibustered only under extraordinary circumstances.” Because there were 45 Democrats in the Senate at the time, the apparent commitment by seven Democrats to support cloture (except in “extraordinary circumstances”) meant that Democrats would generally no longer be able to filibuster judicial nominees. On the other hand, the signatories to the agreement also committed to oppose the proposed cloture reform, so that effort was dead.

Gerhardt and Painter contend that, “[f]or the remainder of George W. Bush’s presidency, the [Gang of 14] agreement held.” They lament that “in the past two and a half years, several developments have threatened the continued viability of the agreement.” “Perhaps most important[]” among these developments is that “the remaining Republican members of the Gang of  14 have each found ‘extraordinary circumstances’ justifying their support of some judicial filibusters.”

One elementary flaw in Gerhardt’s and Painter’s account is that they fail to recognize that the Gang of 14 agreement, by its very terms, related only “to pending and future judicial nominations in the 109th Congress”—that is, for 2005 and 2006. (The full text of the agreement is available here.) In other words, the agreement, by its own terms, stopped having any operative effect at the end of 2006. So it simply makes no sense to state that the agreement “held” for the last two years of George W. Bush’s presidency (with their Senate majority in 2007 and 2008, Democrats did not need to resort to the filibuster to obstruct nominees), or to be concerned that its (nonexistent) “continued viability” is threatened, or to fault its Republican signatories for supposedly acting against Obama nominees in a manner inconsistent with its (inapplicable) terms.

It’s not that Gerhardt and Painter dispute this elementary point. They don’t even recognize it.

Given their unfamiliarity with the very agreement they’re purporting to give a history of, it’s perhaps not surprising that Gerhardt and Painter fail to note that one of the Democratic signatories, Senator Inouye, evidently violated the agreement in May 2006 (i.e., at a time the agreement actually governed), when he voted against cloture on Brett Kavanaugh’s nomination to the D.C. Circuit.* Similarly, under their own confused belief that the Gang of 14 agreement has remained in effect, they should have noted that in October 2007 another Democratic signatory, Senator Landrieu, voted against cloture on the nomination of Leslie Southwick to the Fifth Circuit. But they’re too busy faulting Republican signatories to an agreement that expired nearly five years for acting towards Obama nominees in a manner that the authors “cannot square … with any credible, neutral standard of [the] ‘extraordinary circumstances’” provision of the agreement.

Even beyond its pervasive one-sidedness (e.g., “all” of Obama’s judicial nominees “have come from the mainstream”), Gerhardt’s and Painter’s account of the legacy of the Gang of 14 agreement has other amazing errors. For example, they assert that “President Obama withdrew the circuit court nominations of Thomas Vanaskie and Denny Chin prior to cloture votes.” But Vanaskie and Chin were both confirmed, Vanaskie by a vote of 77-20 and Chin unanimously. There was never a filibuster threat on those nominations. As often happens, majority leader Harry Reid filed cloture petitions on those nominations in order to spur agreement on floor votes, and he withdrew the cloture petitions after agreement was reached. In other words, it would appear that Gerhardt and Painter have somehow confused Reid’s withdrawal of the cloture petitions with Obama’s withdrawal of the nominations, and they fault Senate Republicans for defeating two nominees who were in fact confirmed with strong Republican support. [Update (11/2): Gerhardt and Painter have issued a revised version of their paper that silently corrects this error.]

* Another Democratic signatory, Senator Salazar, didn’t vote on the Kavanaugh cloture motion. Because 60 affirmative votes are needed for cloture, a failure to vote is the functional equivalent of a no vote. I don’t know whether or not Salazar was actually unable to vote.


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