The New Normal: Unprecedented Judicial Obstruction and a Proposal for Change

Michael Gerhardt & Richard Painter
Publication Date: 
October 6, 2016

ACS is pleased to release “The New Normal: Unprecedented Judicial Obstruction and a Proposal for Change,” by Michael Gerhardt, the Samuel Ashe Distinguished Professor of Constitutional Law at the University of North Carolina, and Richard Painter, the S. Walter Richey Professor of Corporate Law at the University of Minnesota Law School. Gerhardt, who served as Special Counsel to the Clinton White House on Justice Stephen Breyer's confirmation hearings, and Painter, who was Associate Counsel to President George W. Bush, lament the breakdown of the judicial nominations process, the primary case in point being the refusal of the Senate majority to hold confirmation hearings on the nomination of D.C. Circuit Chief Judge Merrick Garland to the Supreme Court. “The present impasse is unacceptable,” argue the authors, ”with the real prospect of the status quo becoming a Senate opposed to fairly processing judicial nominations.  If that persists, … the federal courts will become nothing more than a spoils of political gamesmanship and will lose their capacity as an independent, fully functioning third branch of government that is above—not captive to—partisan politics.”