Bench Memos

NRO’s home for judicial news and analysis.

Slippery Slopes


I’ve noticed an argument in a few places that what’s dangerous about the proposed rules change is not (so much) that it will allow judges to be confirmed by simple-majority vote as that it will allow further rules change by simple-majority vote. The implicit question is “What’s to stop a majority from getting rid of filibusters altogether?” Or: “from getting rid of majority-frustrating procedural devices altogether?”

The argument is made as though it’s a decisive objection. But even if it’s a good argument–if it establishes a reason worth considering not to make a rules change–it can’t be a decisive objection.

Let me take a step back. What restrains the majority from getting rid of all minority powers now? A lot of things: a majority’s fear of being in the minority in the future; the possibility that such an action will anger the public, or segments of the public important to members of the majority; widely accepted norms of acceptable political behavior. The day after a majority votes for the judicial-filibuster rules change, these restraints will not all disappear. It will be theoretically possible for a majority to abolish the filibuster altogether–as it is theoretically possible for it to do so now. But that does not mean that it will happen.

Now some of the restraints on the majority–such as those norms mentioned above–may well be weakened. It may be that the majority, having seen that it can get rid of judicial filibusters, will be more likely to change the rules in the future when a minority is causing it too much trouble. But the objection is, at least, weaker than it’s usually put. The objection is: “This move would increase the probability that the majority will abolish other minority powers.” And, presumably, a lot of things increase that probability–including, incidentally, the minority’s abuse of the powers it enjoys. For example: Talking about a rules change increases the probability that minority powers will be reduced. That can’t be a decisive objection to talking about it, can it?

Under ideal circumstances, I’d prefer the question of whether 51 senators can change the rules not be put to the test. I’d prefer it to remain a gray area. I’d like the minority to behave with restraint out of fear of provoking the majority into making a 51-vote rules change, and I’d like the majority to behave with restraint because it hasn’t fully grasped its theoretical power to change the rules when it feels like it. But the Democrats’ unprecedented use of the filibuster as a matter of routine has forced the issue. The possible consequences of allowing it to continue seem worse to me than the slightly increased probability that the filibuster will be abolished entirely.


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