Bench Memos

Law & the Courts

Filibuster Folly Backfires

An article in The Hill reports that Senate majority leader Mitch McConnell “worked quietly to round up more than 60 votes to end a [possible] filibuster of Attorney General nominee Loretta Lynch, Republican senators say.” To which I respond: Kudos to Senator McConnell! Specifically, while I would have been happy to see the Lynch nomination defeated on the merits, I’m glad that it wasn’t filibustered.

As I discussed a month ago, the small cadre of current and former Senate Republican staffers who have pushed the disastrously myopic idea of reinstating the filibuster for lower-court and executive-branch nominees didn’t give up when they failed to get the Republican caucus to take that step at the outset of this Congress. Instead, they threatened to use the battle over the Lynch nomination as the vehicle for reinstating the filibuster.

A Senate insider tells me that the threat “divided conservatives,” as it alienated those who recognize that re-adopting the 60-vote cloture threshold would make it very difficult, if not impossible, for the next Republican president to get conservative judicial nominees confirmed (and that Democrats, whenever they regain control of the Senate, would simply abolish the filibuster as soon as the president is a Democrat). According to this insider, but for this threat to reinstate the filibuster, Republicans “might have defeated Lynch.”

McConnell instead evidently had to devote resources to avoid the fiasco that would likely have resulted if a Republican senator had tried to force a majority vote on whether to re-adopt the 60-vote threshold. The 66 votes for cloture that the Lynch nomination received under the existing simple-majority cloture threshold made clear that restoring the 60-vote threshold would not enable Republicans to filibuster the Lynch nomination.

If the old filibuster rule had been re-adopted, I don’t believe for a second that there would have been 41 Republican senators who would stand firm on filibustering the Lynch nomination if there weren’t also 51 senators prepared to vote against the nomination (in which case, of course, there would have been no point in filibustering). As I’ve discussed before (in point 2 here), the nominations filibuster (the 60-vote cloture threshold) is a feeble and counterproductive tool for a majority party to deploy. Among other things:

Without the filibuster, Republicans would recognize that they need to unify to defeat bad nominees. The availability of the filibuster instead triggers an ugly dynamic in which some Republican senators pose as hardliners and attack their colleagues. Internal divisions, magnified by press coverage, would make the filibuster very difficult to sustain and very damaging to party unity. As a result, it may be even more difficult to get the 41st vote for a filibuster than to get the 51st vote against a nomination on the merits in a no-filibuster regime.

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