I rarely disagree with NRO’s editors, but I do on the matter of judicial filibusters (or the minority threatening to use them). The so-called “nuclear option” was launched several years ago by the Senate Democrats. They’ve prevented a Senate vote on 10 judicial nominees, and threaten to do the same to another 6. Let’s not split hairs here. At not time in our history has a Senate minority acted with such complete contempt for the Constitution, contempt for a president, or disregard for the Senate’s proper role. The Senate rules have never been used this way. The super-majority requirements in the Constitution must not be rejected as superfluous to this issue. Yes, the Senate has the authority to set its own rules. But it cannot set rules that fundamentally restructure its advise and consent role. However, even if you don’t accept this viewpoint, it has honored in the breach by every Senate minority preceding this presidency.
Conversely, the Senate filibuster rule has been changed over the course of history — from one senator being able to block the Senate’s activities, to two-thirds in the early 1900s, to three-fifths only a few decades ago. There’s nothing sacrosanct about this particular Senate rule.
As for the political downside, I see nothing worse than the current circumstance. A rather significant majority of the Senate cannot force a floor vote on key judicial nominees without changing the rule. If this continues, it is a major setback for the president and the Republican Party. We’re not talking about some pork barrel legislation, we’re talking about the make-up of the third branch of government. When the Republicans become the minority, our position should remain the same, i.e., a minority of Senate Republicans should not use or threaten to use the filibuster to block floor votes on judicial nominees. It seems to me that should be our position — consistent fidelity to the Constitution, whether we’re in the majority or the minority.