Bench Memos

On Abolishing the Judicial Filibuster

According to this New York Times article, Senate majority leader Harry Reid is exploring a change to the Senate’s filibuster rules that “would most likely affect federal judges and executive branch nominees like cabinet members” but supposedly “would not affect the minority’s right to filibuster Supreme Court nominees or legislation.”

As I understand it, the Reid proposal would eliminate the filibuster for lower-court judges and is designed to lead to the confirmation of the three pending D.C. Circuit nominees. As I’ve long made clear, I’d be happy to see the filibuster abolished for judicial nominees.

I will note, though, that I don’t see how Reid can abolish the filibuster vis-à-vis pending judicial nominees without setting a clear precedent that would enable a future Senate majority, in the very midst of a confirmation battle over a Supreme Court nominee, to abolish the filibuster with respect to that nominee.

As Roll Call (and others) have reported:

There’s long been concern among some supporters of abortion rights about deploying the nuclear option for lifetime appointments to the federal bench, because a Republican White House could team up with a future GOP-led Senate to confirm judicial nominees hostile to the landmark Roe v. Wade decision.

It would be funny indeed if folks on the Left who evidently rue Senate Democrats’ opportunistic decision in 2003 to inaugurate the filibuster as a weapon against judicial nominees were now to support an opportunistic rule change that would lay the foundation for making it much easier for a Republican president to appoint anti-Roe Supreme Court nominees.

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