The American Constitution Society has published an issue brief by law professors Michael Gerhardt and Richard Painter setting forth a “proposal for judicial nominations reform” that suggests limiting the power of a minority of senators to obstruct a judicial nominee from being confirmed. Predictably, National Review Online's Ed Whelan -- who professes to be an opponent of filibustering judicial nominees, but always seems to provide cover for Republican attempts to filibuster President Obama' nominees -- is on the warpath against the report.

People can legitimately disagree about when, if ever, filibusters of judicial nominees are legitimate. But Whelan's attack against Gerhardt and Painter is far from fair.

In their report, Gerhardt and Painter noted that in 2005, a “Gang of 14” senators agreed not to filibuster judicial nominees except in “extraordinary circumstances.” Gerhardt and Painter then suggested that the agreement has broken down, in large part because all remaining Republican members of the Gang of 14 have voted to filibuster one or more of President Obama's judicial nominees:

On May 23, 2005, seven Republican and seven Democratic senators banded together to block a movement that would have changed the Senate forever. Because the Senate at that moment was otherwise almost evenly divided over a radical plan to revise the rules of the Senate to bar judicial filibusters without following the Senate's rules for making such a revision, the Gang of 14, as the senators became known, controlled the future of judicial filibusters. They each agreed not to support a filibuster of a judicial nomination unless there were “extraordinary circumstances.” For the remainder of George W. Bush's presidency, the agreement held, and there were no filibusters of judicial nominations. But, in the past two and a half years, several developments have threatened the continued viability of the agreement of the Gang of 14.

[...]

Perhaps most importantly, the remaining Republican members of the Gang of 14 have each found “extraordinary circumstances” justifying their support of some judicial filibusters.

Whelan responded by calling Gerhardt and Painter “hilariously confused” and stating: “One elementary flaw in Gerhardt's and Painter's account is that they fail to recognize that the Gang of 14 agreement, by its very terms, related only 'to pending and future judicial nominations in the 109th Congress' -- that is, for 2005 and 2006.”

But while the agreement technically applied only in 2005 and 2006, Whelan is either confused himself, woefully uninformed about the judicial nominations process, or dissembling when he suggests that the Gang of 14 agreement is no longer applicable.

Indeed, in Senate floor speeches in 2011 alone, the following Republican senators have applied the “extraordinary circumstances” test: Sens. Jeff Sessions (AL), a former ranking member of the Senate Judiciary Committee; John McCain (AZ), a member of the Gang of 14; Jon Kyl (AZ), a member of the Senate Judiciary Committee; Charles Grassley (IA), the current ranking member of the Senate Judiciary Committee (on two occasions); and John Cornyn (TX), a member of the Senate Judiciary Committee.

If the Gang of 14 agreement is now meaningless, why do the senators continue to reference it when justifying filibusters of judicial nominees?

That's not all that's wrong with Whelan's attack. Whelan says Gerhardt and Painter's report suffers from a “pervasive one-sidedness” without ever acknowledging that Painter served as the chief ethics lawyer for President George W. Bush.

Furthermore, rather than debate the merits of Gerhardt and Painter's proposals, which consist of either having up-or-down votes on all nominees or allowing a minority of senators to delay a confirmation vote for up to two years instead of allowing a filibuster, Whelan nitpicks and ridicules the idea. Gerhardt and Painter made the following proposal:

Occasionally, some senators will 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.” 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.

[...]

We believe the best mechanism for implementing our suggested standard is through an agreement between the majority and minority leaders of the Senate. This is the same mechanism that was recently used in fixing the problem with anonymous holds over judicial nominations.

Whelan responds by pretending not to understand that Gerhardt and Painter are suggesting that their proposals take the place of the current procedures and by mocking them for suggesting that the change in procedure be accomplished by the two leaders of the Senate (who presumably would be responsible for holding their caucuses in line):

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?

Does Whelan think a proposal to increase the number of senators required to block a judicial nomination from 41 -- the number needed to filibuster under current procedures -- to 45 -- the number Gerhardt and Painter propose -- is a good idea? Does Whelan think that replacing the current procedure, which allows the minority to indefinitely delay a judicial nominee, with a procedure that allows the minority to delay for no more than two years is a good idea?

Whelan won't tell us. He's too busy mocking Gerhardt and Painter and defending Republican filibusters against Obama judicial nominees.