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Ending Judicial Filibusters


There are smart, principled conservatives on both sides of the debate over whether the Senate rules on filibustering judges should be changed–as there are on all sides of the related debates over how and when the rules should be changed if they are to be changed. NR is opposed to changing the rules, at least in the near term.

Here’s an email response from one smart supporter of a rules change: “It’s not clear to me why the George Will-National Review unilateral, preemptive disarmament strategy helps us convince Dems to play nice. . . . [I]t just serves to embolden them, and it makes the President less likely to nominate somebody we’d all cheer.”

Will’s argument is a little different from NR’s. He is worried that changing the rules would put Republicans at a disadvantage if they are in the minority in the future. NR didn’t comment on that idea, but I think this concern is overstated. Republicans are not going to filibuster Democratic judges–especially not now that they have locked themselves into the position that filibusters of judges are wrong in principle. And Republicans shouldn’t count on a future Democratic majority’s leaving the filibuster rules alone if Republicans let them filibuster now.

NR’s argument, on the other hand, is that Democrats are unlikely to “play nice” on Supreme Court nominations, but that a filibuster of one would be likely to backfire on Democrats. Which might make them more likely to play nice in any nominations following the first one to the Supreme Court. As for the president, I’m reasonably confident at the moment that he wants to nominate a strong conservative.


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