Bench Memos

My Perspective on Filibuster Abolition—Part 3

Continuing from Parts 1 and 2:

5. Let’s take a long-term perspective now and briefly consider the four basic scenarios in which judicial nominations can occur:

(a) Democratic president/Senate Democratic majority—This is obviously the scenario in which unavailability of the judicial filibuster is most damaging to Republicans. But, as my discussion of the first two years of the Clinton administration shows, Republicans retain the power to inflict significant political costs for conspicuously bad nominees. (Nominees who are reasonably anticipated to be bad, but who aren’t conspicuously bad, wouldn’t generally be promising targets for filibusters either.)

(b) Democratic president/Senate Republican majority—In this scenario, Republicans generally shouldn’t need the filibuster to constrain the president’s picks. (Of course, if the margin of control is very narrow and some Republicans are ready to jump ship, then the scenario becomes much more like the first.) The idea of completely blocking a president’s judicial nominees is, I think, a pipe dream.

(c) Republican president/Senate Republican majority—This is the scenario in which unavailability of the judicial filibuster offers the greatest opportunity, as a straight party-line vote will suffice to confirm the president’s nominees.

(d) Republican president/Senate Democratic majority—As the last two years of the Bush 43 administration show, a Democratic majority doesn’t need the filibuster to stymie a Republican president’s nominations.

6. My own judgment is that the judicial filibuster was much more valuable to Senate Democrats opposing a Republican president’s nominees than it was to Senate Republicans opposing a Democratic president’s nominees. That judgment rests in part on my assessment (shared by many folks on the Left) that conservatives are winning the public debate over the proper role of judges. Straight up-or-down votes provide political accountability; votes on cloture tend to obscure it.

The mainstream media has also been the willing handmaiden of Democrats on filibusters, as it obscured and downplayed the unprecedented nature of the campaign launched in 2003 and has hyped the Democratic attack on Republican filibusters. (A similar bias surely plays out on up-or-down votes, but seems to me to have less influence there.)

7. The only real prospect for improvement in the courts requires a good Republican president, and the most promising prospect involves a good Republican president and a Senate Republican majority. If this most promising prospect occurs, the unavailability of the filibuster should help Republicans make the best of it—including for Supreme Court nominations. (Although the rule change purports not to apply to Supreme Court nominations, the precedent that has been established clearly does.)

Maybe neither of these scenarios will happen any time soon, but in that case I think that our country may well be in such deep trouble across the board that more lousy judges won’t matter all that much. So I’m happy to take my chances without the filibuster.

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