Bench Memos

Both Sides of the Filibuster-Reinstatement Debate

I gather that the terrible idea of trying to reinstate the filibuster for lower-court and executive-branch nominees continues to distract Republican senators from far more important things. So I figured that I’d compile the public arguments that have been made on both sides of that issue:

1. On the side against filibuster-reinstatement, pardon me for leading with my own morning-after-Election Day essay on NRO, “Don’t Bring Back the Judicial Filibuster.” I’ve supplemented that essay with numerous Bench Memos posts, including:

Senator Sessions Against Unilateral Disarmament

Judicial Versus Legislative Filibusters

Lindsey Graham’s Myopia

More Bad Arguments for Filibuster Reinstatement

And I’ve still received no answer to this elementary question that I’ve posed to reinstatement proponents:

What possible reason is there to think that Democrats, when they regain control of the Senate, wouldn’t abolish the judicial filibuster as soon as there is a Democratic president? And if you don’t have a compelling answer to that, why are you supporting a change that would mean that when Democrats control the Senate, liberal nominees would need only a simple majority to get confirmed, but when Republicans control the Senate, conservative nominees would have to pass the much higher threshold of 60 votes? 

Among the other resources against filibuster-reinstatement that I’d recommend:

House editorial in the Wall Street Journal, “Republicans and the Filibuster: The Senate GOP shouldn’t create a double standard for nominees

House editorial on National Review Online, “No to the Judicial Filibuster

Wall Street Journal op-ed by Senator Orrin Hatch and former White House counsel Boyden Gray, “After Harry Reid, the GOP Shouldn’t Unilaterally Disarm

Memorandum from more than two dozen conservative leaders opposing reinstatement of the filibuster

Quin Hillyer’s NRO essay, “Leave the Nuked Filibuster Alone

2. And, now, for the essays in favor of reinstating the filibuster, I’m pleased to highlight ….

Oops, where are they? Oh, how strange! So far as I’m aware, none of the actual proponents* of  reinstating the filibuster has even tried to present a public argument in writing—much less a comprehensive argument that explains the reasons for the proposal, carefully assesses the foreseeable consequences, and answers the arguments against. Why might that be, I wonder? Perhaps because proponents recognize that the less that Republican senators understand the proposal, the more likely they are to support it (perhaps mis-imagining that it’s some way to get back at Harry Reid).

* On Power Line, Paul Mirengoff urged that Senate Republicans be “opportunistic” by re-imposing the filibuster for President Obama’s last two years and then abolishing it again in 2017 if a Republican is president. That approach has zero support among the reinstatement proponents in the Senate—and, indeed, flies headlong against the arguments they are making.


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