Bench Memos

Law & the Courts

Filibuster Follies over AG Lynch Nomination?

In the immediate aftermath of last November’s elections, I warned against a stealth campaign by a small cadre of current and former Senate Republican staffers to encourage Republican senators to reinstate the filibuster—that is, the 60-vote cloture threshold—for lower-court and executive-branch nominees. (The 60-vote threshold for Supreme Court nominees was never altered.)

As I discussed, any marginal benefit the filibuster would provide during President Obama’s last two years in office would be vastly outweighed by the harm that it would inflict on the ability of a Republican president, elected in 2016, to get excellent judicial nominees confirmed. Even worse, the fact that Democrats, when they next regain control of the Senate, would surely abolish the filibuster as soon as it was in their interest to do so (i.e., whenever there was a Democratic president) means that Republican reinstatement of the filibuster would lead to a damaging asymmetry: 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 need 60 votes. That’s a recipe for judicial disaster.

The filibuster-reinstatement advocates failed to attain their immediate objective, as there was nowhere near a consensus among the new set of Republican senators in favor of adopting such a change at the outset of this Congress. But they haven’t given up. They’re now planning to use the pending battle over the nomination of Loretta Lynch as Attorney General as the vehicle for reinstating the filibuster. Specifically, during floor action on the Lynch nomination they hope to have a Republican senator raise a point of order and thus force a majority vote on whether to re-adopt the 60-vote cloture threshold.

The many Republican senators who oppose the Lynch nomination do so for a compelling reason: because of her support for President Obama’s hotly contested immigration actions. But in my judgment it would be a massive folly for Republicans to reinstate the filibuster in order to try to block the Lynch nomination.

Yes, Lynch, with the support of some Republicans, might end up getting confirmed on a straight up-or-down vote.  But even apart from the prospect that, if the filibuster were re-imposed, she might be as likely (for the reasons I set forth at the end of my point 2 here) to get the 60 votes needed for cloture, the simple reality is that there is no significant upside to defeating Lynch by a filibuster. If the Lynch nomination is defeated, Eric Holder will remain Attorney General. Anyone whom Obama nominates in her stead will surely also support his immigration actions, as will anyone who would become acting Attorney General if Holder were at some point to throw in the towel.

For that we’d give Harry Reid, Chuck Schumer and company the power to filibuster the next Republican president’s nominees?? That’s a fool’s bargain (or, as the National Right to Life Committee more gently puts it in its letter opposing the possible point of order on the Lynch nomination, “a pyrrhic victory indeed”). 

Many of the strongest opponents of Obama’s immigration excesses have also been among the many conservative leaders who have been the strongest opponents of reinstating the filibuster. So no Republican senator should mistake their fight against the Lynch nomination as though it were support for re-imposing the filibuster as part of the fight.

Most Popular

Law & the Courts

The Second(-Class) Amendment

Editor’s Note: The following is the fourth in a series of articles in which Mr. Yoo and Mr. Phillips will lay out a course of constitutional restoration, pointing out areas where the Supreme Court has driven the Constitution off its rails and the ways the current Court can put it back on track. The first entry ... Read More

The Brexit Crisis

After what seem like years of a phony war, British and European Union negotiators finally agreed on the terms of Britain’s departure from the EU earlier this week, and Theresa May announced it in the House of Commons. The deal covers more than 500 pages of legal and bureaucratic prose, and few but the ... Read More

Friends of Elmer

Do you know what scares an American outdoorsman more than a grizzly bear? Twitter. In the late summer and early autumn, the hunting world had its eyes on the courts: The Trump administration had issued new guidance that would permit the hunting of brown bears (popularly known as grizzly bears), including in ... Read More