One of the most obvious, enduring benefits of the Republicans’ resounding victory on Tuesday will be their ability to check the president when it comes to judicial nominations. Especially since the end of the judicial filibuster almost exactly one year ago, the president has filled the federal judiciary with all manner of unsuitable nominees, in thrall to liberal judicial ideology and eager to rubber-stamp the president’s agenda.
Republicans now have a chance to stop, or at least dramatically slow, that trend. Yet some have suggested a rule change, too: They propose that the new majority should restore the filibuster for judicial and executive-branch nominees, requiring 60 votes to end debate.
This makes little sense as a principled statement and is deeply unwise as a practical matter. While the legislative filibuster enjoys a long tradition in the Senate, that’s not the case for the judicial filibuster. Indeed, although the judicial filibuster became nominally available in the first half of the 20th century, it never became part of the upper chamber’s practice. Senate Democrats more or less destroyed this precedent in the mid 2000s when they filibustered a number of President George W. Bush’s judicial nominations. In response, Republicans mooted the reasonable idea of eliminating the 60-vote requirement for judicial nominees.
That was met with much hysteria from Democrats, and key senators from the two parties reached another agreement. Last year, the same Democrats implemented the idea, “the nuclear option,” they had once excoriated Republicans for pursuing — and they did so with regard to executive-branch nominees as well as judges.
Debates over practical advantage and principle have to be based on reality, and the reality is that Democrats have for a decade now shown a willingness to dispense with historical precedent on many more matters than just the filibuster.
If Republicans bring back the filibuster, Democrats will surely abolish it the next time they have a Senate majority and the presidency. So Republicans would effectively be demanding 60 votes for their nominees in a Republican Senate knowing that Democrats would probably rely on just 50 votes for theirs. As for principle, the status quo of the U.S. Senate before Democrats sabotaged it in the new millennium was that the president’s judicial nominees were not filibustered. Bringing back the judicial filibuster would be more antiquarian and quixotic than restorative.
Some conservative defenders of the filibuster worry that the minority could somehow peel off enough Republican support to confirm nominees that most conservatives do not support. This is exceedingly unlikely in a body structured like the Senate — Republican leadership and conservatives retain plenty of ways to ensure that only nominees they assent to will get to a full confirmation vote.
In any case, the benefits of having no filibuster for judicial nominees, when a Republican makes it to the White House, far outweigh whatever exceedingly slim chances there are of the above scenario. As Senator Orrin Hatch has pointed out, Democrats have done a great deal of damage to our judiciary in just the short time since Majority Leader Reid embraced his General Ripper. Republicans would be foolish to disarm themselves in the fight back. Other practical benefits to the 51-vote threshold, such as easier executive-branch and commission appointments for a future Republican president, should also not be overlooked.
The 60-vote rule for legislation, thanks to its long history of use and the range of competing interests in the Senate, is likely to survive under either party. It does not owe its survival to the vitality of the judicial filibuster.
There are a number of difficult questions that face next year’s Republican Senate majority. This is not one of them.