According to this Huffington Post article, Republican senator (and Judiciary Committee member) Lindsey Graham wants Senate Republicans to reinstate the judicial filibuster. I’ve already explained in this essay why I think that filibuster-reinstatement, which wouldn’t be durable, is a terrible idea. I’ll respond here to Graham’s specific arguments:
1. Graham: “If you get a Republican president, then we’ll see what Democrats do on their watch. But the next two years, I think, it is in our self-interest to make it harder to get people into the judiciary and executive branch, not easier.”
Graham is focusing myopically only on the next two years and is utterly ignoring the severely damaging effect that filibuster-reinstatement would have on the next Republican president. There is simply no way that Senate Republicans would reinstate the filibuster now and then abolish it if a Republican president is elected in 2016, and none of the arguments made by reinstatement proponents would countenance that opportunism.
There’s no mystery about “what Democrats [will] do on their watch.” If Democrats regain control of the Senate in 2016 and win the presidency, Democrats will promptly abolish the filibuster again. But if Democrats regain control of the Senate and a Republican wins the presidency, Democrats would simply leave the filibuster in place until there is a Democratic president.
So Graham is supporting a crazy regime in which liberal nominees would need only a simple majority to get confirmed in a Democrat-controlled Senate but in which conservative nominees would need 60 votes to get confirmed in a Republican-controlled Senate.
(My point 2 applies to Graham’s claim of “self-interest” over “the next two years.”)
2. Graham: “If you keep it at 51, all they [Democrats] have to do is pick up three, four Republicans and I’m worried that you’re no stronger than your weakest link. Having to get to 60 is a much more collaborative process.” “[I]t gives you a chance to have a say about what kind of judges we’re going to put on the bench the next two years, who will run the executive branch.”
Republican control of the Senate assures Republicans plenty of “say” over nominees. (Compare, for example, the remarkable influence that Democrats had during the last two years of the George W. Bush presidency, when they had a bare 51-49 majority.) As I spell out in my essay, Republicans would have multiple backstops against unacceptable nominees, so the likely value of reinstating the filibuster is trivial over the next two years. But even if you disagree with that assessment, any value it has is swamped by the downside if a Republican president is elected in 2016. And while the election of a Republican president in 2016 is of course far from certain, all planning should be prepared to take full advantage of that opportunity.
Further, far from promoting “a much more collaborative process,” the filibuster would incite in-fighting among Republicans and tend to make all the “links” weaker. 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.
3. Graham: “I think we should go back to 60 votes to approve any nomination. I think it stood the test of time.” “I think it’s in our self-interest to go back to the way the Senate used to work and have a 60-vote hurdle.”
The “test of time”?!? “Back to the way the Senate used to work”??
Contra Graham, the longstanding tradition of the Senate, which prevailed throughout American history until Democrats flouted it beginning in 2003, is that the partisan filibuster of judicial nominees is an unacceptable tool of obstruction. Leaving the abolition of the filibuster for lower-court judges in place is consistent with the “test of time” and “the way the Senate used to work.” Reimposing the filibuster isn’t.