Bench Memos

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Re: Gerhardt’s and Painter’s Extraordinary Confusion


Some quick follow-up to my Part 1 and Part 2 posts on law professors Michael Gerhardt’s and Richard Painter’s badly confused ACS Issue Brief titled “‘Extraordinary Circumstances’: The Legacy of the Gang of 14 and a Proposal for Judicial Nominations Reform”:

1. Marty Gold, a leading expert on Senate procedure, has by e-mail confirmed my assessment that Gerhardt’s and Painter’s convoluted approach (involving a vote on a resolution of objections) would require amending the Senate rules.

2. A Media Matters blogger (whom I will refer to as “MM”) tries to race to the rescue of Gerhardt and Painter but only compounds their confusion. MM makes two basic arguments, which I will address in reverse order.

First, MM contends (if I’m understanding him correctly) that (a) Gerhardt and Painter are actually proposing that the current Senate rule permitting filibuster of judicial nominees be abolished and be replaced by their proposals, and (b) that they’re not really arguing that their resolution-of-objections approach could be implemented by mere agreement of the two Senate leaders but rather that the leaders, as MM puts it, “presumably would be responsible for holding their caucuses in line.”

Tellingly, MM cites nothing from Gerhardt’s and Painter’s paper to support these contentions. I expressly acknowledged that the “internal confusions” in the paper made it “a much more difficult task that it ought to be” to figure out whether I was “reading their paper right.” That said, I don’t see how anyone can plausibly read Gerhardt and Painter to be proposing to abolish and replace (rather than supplement) the current Senate rule permitting filibuster of judicial nominees. Among other things, they state that their proposal “will realize Senator Cornyn’s stated objective of putting an end to the filibuster in all but the most exceptional circumstances” (thus clearly implying that the filibuster will survive as an option). And rather than calling their resolution-of-objections approach a version of a filibuster, they distinguish it from a filibuster.

Gerhardt and Painter assert that the “best mechanism for implementing” their proposal “is through an agreement between the majority and minority leaders of the Senate.” I see no basis for reading their assertion to mean that they are proposing a rules change by vote of the entire Senate (or by unanimous consent), with the leaders (again, in MM’s words) “holding their caucuses in line.” If that’s what they meant by their “best mechanism,” then what other ordinary mechanisms do they view as inferior? And if that’s really what they meant, then why couldn’t they have simply said so?

Now on both points it’s of course possible that Gerhardt and/or Painter subjectively meant to propose something like what MM claims they proposed. If so, their paper is even more poorly crafted than I imagined. But I can hardly be faulted for trying to make sense of what they have actually written.

Second, MM hilariously claims that the Gang of 14 agreement is still “applicable,” notwithstanding (as I pointed out) that by its own terms it applied only “to pending and future nominations in the 109th Congress” (i.e., in 2005 and 2006). (According to MM, I am “either confused,” “woefully uninformed,” or “dissembling.”) MM purports to support his claim by stating that various Republican senators in 2011 pointed to “extraordinary circumstances” to justify their support of a filibuster.

MM seems not to recognize the elementary point that the Gang of 14 agreement did not introduce the concept of “extraordinary circumstances.” So far as I’m aware, no senator has ever maintained that he will resort to the filibuster as a matter of course for any nominee he opposes. Before the Gang of 14 agreement ever existed, Democratic senators filibustering President Bush’s nominees routinely claimed that “extraordinary circumstances” (or the like) justified their course of action. To cite but two examples (from the quickest of searches): In April 2003, Senator Reid defended Senate Democrats’ filibuster of the nominations of Miguel Estrada and Priscilla Owen by contending that “there have been extraordinary circumstances that have caused us to do what we have done.” In December 2003, Senator Leahy asserted on the Senate floor that the “few judicial nominations on which the Senate has withheld a final vote this year have each presented extraordinary circumstances or nominees with extreme positions.” It would be more tedious than illuminating to extend the list.

Indeed, the fact that four of the five Republican senators whom MM cites were not signatories to the Gang of 14 agreement shows that continuing references to “extraordinary circumstances” don’t somehow demonstrate that the Gang of 14 agreement is still “applicable.”

If Gerhardt and Painter were simply engaged on the fool’s errand of trying to give determinate content to the concept of “extraordinary circumstances,” then my observation that the Gang of 14 agreement is no longer operative would be irrelevant. But they instead complain that its (non-existent) “continued vitality” is “threatened,” and they specifically fault “the remaining Republican members of the Gang of 14” for construing “extraordinary circumstances” too broadly. The fact that they don’t recognize that the Gang of 14 agreement is no longer operative is quite remarkable.


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