Bench Memos

Against the Revival of Nomination Filibusters

Just a quick comment to note that I wholly agree with Ed Whelan that it would be a mistake for Republicans to revive the possibility of filibusters for judicial nominations.  The de facto requirement for sixty votes to confirm a judge created by Senate Democrats was an aberration without historical precedent.  Until Senate Democrats sought to obstruct some of President George W. Bush’s nominees, no judicial nominee who enjoyed majority support had ever been blocked by a filibuster. (This is even true for the Supreme Court, as the nomination of Justice Abe Fortas to Chief Justice never enjoyed majority support.)  Thus restoring the filibuster for judicial nominations does not restore some honored or age-old tradition. Rather it would resuscitate an obstructionist measure invented for partisan advantage.

I suspect Ed is correct that, as a practical matter, any revival of the filibuster for judicial nominations would be short-lived, and would not be allowed by Senate Democrats should filibusters threaten to block a Democratic President’s judicial nominees. But even were that not the case, I would still oppose it.  All judicial nominees should receive prompt up-or-down votes. This is what many Republicans argued (correctly) when Senate Democrats blocked slow-walked George H.W. Bush’s nominees and sought to block George W. Bush’s nominees.  It was true then and it remains true today.  Further, increasing the number of votes required for judicial confirmation creates pressure to nominate stealth candidates and is likely to make it particularly difficult to confirm the brightest conservative legal minds to the bench.  In today’s political environment, judges like Frank Easterbrook, Bill Pryor, or Brett Kavanaugh would be particularly difficult to confirm.  What interest does that serve?

The filibuster of judicial nominations was a terrible idea when Senate Democrats started it, and it remains a terrible idea today.

Jonathan H. Adler — Jonathan H. Adler is the Johan Verhiej Memorial Professor of Law and Director of the Center for Business Law and Regulation at the Case Western Reserve University School of Law.

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