Filling the Judicial Vacancies in a Presidential Election Year

Carl Tobias *

In “Extraordinary Circumstances: The Legacy of the Gang of 14 and a Proposal for Judicial Nominations Reform, Professors Michael Gerhardt and Richard Painter contribute substantially to the understanding of the federal judicial confirmation process. The scholars’ recent essay carefully traces the origins and development of the “Gang of 14” (or the “Gang”), the senators’ articulation of the “extraordinary circumstances” limitation on invoking filibusters—by which the seven Democratic and seven Republican members of the Gang agreed to abide—and the consequent degradation of the confirmation process. Detecting that subsequent developments have apparently limited the Gang’s relevance and undermined, if not eviscerated, the meaning of the “extraordinary circumstances” idea, the writers suggest procedures that individual Senate members “should consider following in assessing and voting on judicial nominations.” The scholars conclude by offering a number of justifications which support their proposal.

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* Williams Chair in Law, University of Richmond School of Law. The data in this article are current through April 12, 2012. I wish to thank Peggy Sanner and Lindsey Vann for valuable ideas, Tracy Cauthorn for excellent processing, and Russell Williams for generous, ongoing support. Remaining errors are mine.