Amid all the satisfaction, resolve, and even excitement among Republicans in the wake of last week’s elections, one burbling, intramural dispute could completely ruin the Right’s chances to forge a unity of purpose.
If Republican senators actually try to “denuclearize” the judicial-nomination process — meaning they would undo the “nuclear option” Reid put in place in 2013 and would once again require 60 votes to break a filibuster against judicial nominees — they will catalyze one of the biggest, most brutal civil wars the right-of-center coalition has seen in the past decade.
Reinstating the filibuster for judicial nominations is a bad idea on the merits and, on multiple levels, astoundingly foolish on the politics. Even to push the idea right now is to court needless controversy; it would divide a caucus and a coalition that should not be at odds.
This proposal must be discarded, posthaste.
Ed Whelan has a done great job here at NRO in describing most of the substantive arguments against denuclearization (as has Jonathan Adler), so I will summarize them only briefly before assessing some other considerations.
First, tradition argues against killing judicial nominations via permanent filibuster by a Senate minority. It was only in 1949 that such a thing became formally possible, and only in 2003 that the Senate actually did this for the first time. When Democrats then filibustered to block the nomination of the manifestly qualified Miguel Estrada, it marked such a horrendous departure from both tradition and constitutional theory as to shock conservative consciences.
Second, as a practical matter the death-by-filibuster option promotes the nomination not of stellar candidates but of cyphers with negligible paper trails. The result, from both Democratic and Republican appointees, would probably be a greater incidence of muddied reasoning obscured by murky writing; the clarity of precedents, both wise and unwise, would suffer as a result.
Third, in terms of practical politics, the result of reinstating the filibuster would be, in effect, that Democratic nominees could end up being confirmed with only 51 Senate votes while Republican ones would require 60. This is just the way of the world: Democrats, unhampered by any appeals to intellectual consistency or fundamental fairness, would never fail to re-nuclearize the nomination process the moment they gained political advantage from doing so.
To those arguments, let’s add a reminder that those who crafted the Constitution never imagined that a minority of the Senate could keep the president from appointing judges. In Federalist No. 76, Hamilton first explained why the president should assume the primary responsibility for choosing judges: “I proceed to lay it down as a rule, that one man of discernment is better fitted to analyze and estimate the peculiar qualities adapted to particular offices, than a body of men of equal or perhaps even of superior discernment.” Hamilton also posited, with respect to the Senate’s role, that “it is not likely that their sanction would often be refused, where there were not special and strong reasons for the refusal.” (Again, at another point, he repeats: “It is also not very probable that his nomination would often be overruled.”)
Regarding the possibility of letting a minority block the whole Senate from approving a nomination, we can recall Hamilton’s words when he noted that the Constitution makes the president “bound to submit the propriety of his choice to the discussion and determination of a different and independent body, and that body an entire branch of the legislature.” Even more directly, Hamilton wrote that “it will be impracticable to the Executive to corrupt or seduce a majority of its members, but that the necessity of its [the majority’s] co-operation, in the business of appointments, will be a considerable and salutary restraint upon the conduct of that magistrate.”
Of course, Hamilton was not arguing specifically against a filibuster, as the very possibility of such a thing would not have occurred to him, but these lines and the whole tenor of his arguments in Federalist No. 76 and No. 78 (along with other, random comments from Madison’s various Federalist contributions) make it clear that the chief crafters of the Constitution envisioned that nominations would need a mere majority of the Senate to be confirmed, because they wanted the president’s selection to prevail except in the case of “special and strong reasons for the refusal.”
Yet, as noted earlier, there are other, overriding considerations, apart from these high-minded reasons, against reinstating the nominations filibuster. Chiefly, it is essential that the GOP avoid a debilitating intramural fight just when voters have provided Republicans a chance, if they hold together, to block the worst and most dangerous excesses of a radical, term-limited president unrestrained by any remaining electoral concerns.
Just such a battle will ensue if some Republican senators attempt to undo Harry Reid’s nuking of the filibuster. If such an attempt is made, the Right will rightly be up in arms.
Evidence of just how seriously conservative leaders take this issue is that the Republican election victories were less than 24 hours old when 26 key conservative leaders released a detailed memorandum expressing “strong” opposition to the filibuster for judicial nominations. When the leaders of the Susan B. Anthony List, Let Freedom Ring, the Judicial Action Group, the National Right to Life Committee, American Commitment, Concerned Women for America, and the Eagle Forum, among many others, get so far in front of an issue before election observers can even catch their breath, it’s a sure sign that this is more than a minor concern.
“I’ve never seen such unity amongst libertarian and conservative legal thinkers and political activists as I’ve seen on this issue,” said Randy Barnett, the Georgetown University constitutional law professor who played a leading role in litigating the case against Obamacare’s individual mandate.
Indeed, if senators want to see the entire conservative movement “go nuclear,” the surest way to do so is to try undoing the nuclear option.
This will not be a passing dispute. Senators who try — fruitlessly — to play nice with the Democrats, by reinstituting the nomination filibuster, will be inviting a serious primary challenge in 2016. In that year, primary voters will know, without a doubt, that the entire judiciary hangs in the balance for a potential Republican president. Those voters will not put up with senators who favor a system that promotes blank slates such as David Souter over distinguished jurists such as Samuel Alito.
There’s wisdom in the old saying about letting sleeping dogs lie. The current rules effectively enshrine the tradition for confirmations that held from 1789 until 2003. Even if we don’t like how these rules came to be, they are rules that actually make sense. What won’t make sense is enraging the Right by upending them.
— Quin Hillyer is a contributing editor for National Review. Follow him on Twitter: @QuinHillyer.