A critical problem with some of the compromises now being feverishly hashed over by the senators in both parties who are afraid of an up-or-down vote (on filibusters, that is) is that the “extraordinary circumstances” escape valve is sure to be abused. How do we know this? Well, truly “extraordinary circumstances” ought to lend themselves to a bipartisan vote against confirmation. If a nominee is truly extreme or out-of-the-mainstream, then even a 45-senator minority ought to be able to persuade 6 Republican moderates to vote no. Almost by definition, any controversial nominee who can ultimately garner the support of a Senate majority is sufficiently mainstream to deserve confirmation. Thus, in truly “extraordinary circumstances,” a filibuster shouldn’t be necessary; good, old-fashioned debate and persuasion should do the trick.
The only wrinkle here is party discipline. There are times when leadership in both parties leans hard on its senators and doesn’t allow them to vote their consciences. The Democrats are actually much more ruthless and effective about this: Their internal party rules give their leadership much more power to punish an apostate than do the Republicans’ rules. Nonetheless, there are “leadership votes” or “caucus issues” where both parties essentially force their members to get in line. Perhaps to best compromise of all is for both parties to agree to the exercise of the nuclear option (i.e., that 50 votes will be sufficient for confirmation) and simultaneously that neither party will insist on party discipline in votes on judicial confirmation. That way, the constitutional principle of advice-and-consent by a majority of the Senate will be respected, but the power of rational persuasion will be given free rein, and the minority need not fear raw power plays by the majority.