Professor Michael Gerhardt

by Jeremy Leaming

With more than 80 vacancies on the federal bench and courts’ workloads piling up, it is far past time for the U.S. Senate to overcome the rancor surrounding judicial nominations and start confirming judges, two law professors, who have been intimately involved with the federal judicial nominations process, write in a new ACS Issue Brief.  

In their Issue Brief, UNC School of Law Professor Michael Gerhardt and University of Minnesota Law School Professor Richard Painter write that an effort hatched in 2005 by the so-called “Gang of 14” senators to help avert a crisis over judicial nominations has failed to foster continued cooperation on confirming judges, which in turn has resulted in a high vacancy rate on the federal bench. The professors argue that the plan, which centered on a promise not to filibuster judicial selections “unless there were ‘extraordinary circumstances,’” has not held up well.

Gerhardt, who helped craft policy for the Clinton administration on the judicial nominations process, and Painter, who served as President George W. Bush’s chief ethics lawyer, explore the origins of the Gang of 14’s agreement on judicial nominations, but call on senators to reach a new accord on ending the ongoing delays of judicial nominations, which have resulted in a sustained high vacancy rate on the federal bench.

The authors note that Senate leaders, “particularly Republican Members, have long called for reform of the process for confirmation of judicial nominees and an end to the filibuster.” The two cite a 2005 law review article by Texas Sen. John Cornyn who wrote, “It is time to end the blame game, fix the problem, and move on. Wasteful and unnecessary delay in the process of selecting judges hurts our justice system and harms all Americans. It is intolerable no matter who occupies the White House and no matter which party is the majority party in the Senate. Unnecessary delay has for too long plagued the Senate’s judicial confirmation process. And filibusters are by far the most virulent form of delay imaginable.”