The New Normal: Unprecedented Judicial Obstruction And A Proposal For Change

Michael Gerhardt Samuel Ashe Distinguished Professor in Constitutional Law, University of North Carolina School of Law
Richard Painter S. Walter Richey Professor of Corporate Law, University of Minnesota Law School

October 6, 2016

Michael Gerhardt, who served as Special Counsel to the Clinton White House on Justice Stephen Breyer's confirmation hearings, and Richard 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.”

Read full issue brief here: The New Normal: Unprecedented Judicial Obstruction and a Proposal for Change

By Michael Gerhardt and Richard Painter