See Part 1

Now let’s address Michael Gerhardt’s and Richard Painter’s proposal for reform of the Senate’s judicial-confirmation process, set forth in Part II of their ACS Issue Brief.

If I’m reading their paper right (its internal confusions make that a much more difficult task than it ought to be), Gerhardt and Painter oppose the filibuster of judicial nominees “in all but the most exceptional circumstances.” As they put it:

If a nominee’s philosophy is not extreme and poses no threat to basic doctrine or the proper functioning of American courts, and if a nominee has committed no serious ethical breaches, no other appropriate basis for objection to a nomination exists.*

Because (as I have stated over the years) I would favor the permanent abolition of the use of the filibuster against judicial nominees, I’m not going to quarrel with Gerhardt and Painter for trying to set forth a very restrictive standard. I will note, though, that like any other effort to define “extraordinary” or “exceptional” circumstances, their standard uses vague terms whose application would inevitably invite dispute and inconsistency.

At the core of their reform proposal, Gerhardt and Painter present two approaches that they believe are “legitimate” for senators to use when those senators “believe that there are ‘extraordinary circumstances’ that justify blocking a judicial nominee.” The reader will have ample reason to be puzzled whether Gerhardt and Painter mean these approaches to be in addition to resort to the filibuster (which I thought they regarded as legitimate in “exceptional circumstances”) or in lieu of the filibuster (which, whether or not “legitimate,” would remain available as an option under their reform).

Here’s Gerhardt’s and Painter’s statement of the first “legitimate” approach that senators may take when they “believe that there are ‘extraordinary circumstances’ that justify blocking a judicial nominee”:

One approach – and we believe a legitimate one – would be for those senators to agree to a procedure in which they could simply vote “no” and still allow the nominee to be confirmed if the majority of the Senate is likely to vote “yes.”

How curious! The “procedure” that Gerhardt and Painter offer as though it were some sort of innovative solution is exactly what happens on the merits vote on a nomination: Those who oppose the nomination “simply vote ‘no’” and the nominee is confirmed if the majority votes yes. Why would any senator who is otherwise inclined to resort to the filibuster find it attractive to pursue this approach? Gerhardt and Painter don’t even ask that question, much less offer an answer to it.

Gerhardt’s and Painter’s second “legitimate” approach is, to be sure, much more novel:

Another legitimate approach would be for the objecting senators to be permitted to introduce a resolution stating with specificity their objections to the nomination, and if the resolution received a certain number of affirmative votes (at least 45) from other senators, it would delay a confirmation vote on the nominee for a period of time, perhaps until the next Congress is seated, after which there would be an up or down vote and no further delay if the President has resubmitted the same nomination. This delay would ensue even if a majority of senators voted against the delaying resolution, but there would be an end in sight as a similar resolution could not be introduced to further delay the same nominee in the next Congress.

There are some serious defects in this approach, none of which Gerhardt and Painter take note of. For starters, Gerhardt and Painter assert that this convoluted proposal would “best” be implemented “through an agreement between the majority and minority leaders of the Senate.” But the resolution of objections that they contemplate would not be guaranteed a vote (it would need 60 votes for cloture) unless the Senate rules were amended—something that cannot be done by simple agreement of the Senate leaders. (Gerhardt and Painter cite a recent agreement by the leaders to abolish anonymous “holds,” but since that practice was never embodied in Senate rules, the Senate rules did not need to be changed to abolish it.)

To acknowledge that the Senate rules would have to be amended would put Gerhardt and Painter in a bind. The Standing Rules of the Senate set forth a special 2/3 cloture rule for amendments to the Standing Rules. Gerhardt and Painter evidently recognize that their proposal would have little chance of obtaining cloture (that’s presumably why they propose a shortcut). Alternatively, they could maintain (correctly, in my judgment) that the Senate has inherent power to make or alter its rules by majority vote, but that’s the very proposition that, if the Republican majority had acted on it to eliminate the judicial filibuster in 2005, would, according to Gerhardt and Painter, “have changed the Senate forever” for the worse. (Never mind that Senate majority leader Harry Reid deployed the so-called “nuclear option” in another context just a month ago—another inconvenient fact that Gerhardt and Painter overlook—and never mind that there’s plenty of precedent for that eminently sensible proposition.)

Further, what reason do Gerhardt and Painter have to believe that majority leader Reid or minority leader McConnell (or any other senator, for that matter) would have any interest in their convoluted proposal? So long as the traditional filibuster remains an option, what reasons would any senator have to prefer to pursue Gerhardt’s and Painter’s approach?

Any serious proposal for reforming the judicial-confirmation process should rest on an understanding of how we got into this mess in the first place, which in turn requires understanding the incentives and disincentives that shape senatorial behavior. If Gerhardt and Painter are acting on such an understanding, they manage to conceal it.

Relatedly, I’ll note that Gerhardt and Painter find fault with Senator Cornyn for supporting reform of the filibuster in 2003 and then “chang[ing] course” to support the filibuster of the Liu nomination. Theirs is a cheap and lazy charge. As I’ve spelled out more fully (in point 2 here), Senate Democrats’ widespread resort to the filibuster against Bush nominees dramatically altered the terrain. To maintain that some principle of consistency compels Republicans to continue to oppose the judicial filibuster after Democrats have repeatedly resorted to it is to ignore the changed circumstances and to require, as Senator Sessions has aptly put it, “unilateral disarmament” on the part of Republicans. The most sensible, if not the only sensible, choice for Republican senators who want to get rid of the filibuster in the long run is to employ it against very bad judicial nominees by President Obama.

* It’s unclear to me whether Gerhardt and Painter mean by the phrase “no other appropriate basis for objection” that a senator should vote to confirm a nominee who doesn’t present “exceptional circumstances” or merely that the senator should not support a filibuster of (i.e., should vote for cloture on) such a nominee.