Bench Memos

Moderation in the Pursuit of Justices?

John O. McGinnis and Michael B. Rappaport have an interesting argument in their NRO article today defending filibusters of Supreme Court nominations.  A few observations occur to me. 

First, what McGinnis and Rappaport defend is not actually the filibuster but the promiscuous threat of it so as to necessitate the 60-vote cloture margin to move forward with a judicial confirmation.  Were there to be real filibusters–marathon gabfests around the clock–I think I’d actually like this idea.  Then we might discover whether senators have anything to say worth hearing about the Constitution.  (My own preference would be to return to the pre-1917 rules in the Senate, when no such thing as cloture existed.  We’d have far fewer filibusters, real or threatened, but by jingo they’d be a treat!)

Second, I think McGinnis and Rappaport rest their case on a few too many assumptions about the rosy results of promiscuous filibuster threats.  But I’ll let readers tote them up for themselves.

Third, I can’t imagine why anyone would be interested in appointing “moderate” justices to the Supreme Court, or why we should care whether we get justices whose views are close to that of the “median voter” on anything under the sun.  To adapt the famous line Harry Jaffa penned for Barry Goldwater, moderation in the pursuit of justices is no virtue.