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.

Most Popular


‘Epstein Didn’t Kill Himself’

It was just one more segment to fill out the hour, and thereby fill the long 24 hours of Saturday’s cable news on November 2. Or so it seemed. Navy SEAL Mike Ritland was on the Fox News program Watters World to talk to Jesse Watters about trained German shepherds like the one used in the raid that found ... Read More
White House

Impeachment Theater of Trolls

As a boy, I used to watch a television show with a weekly gag titled “MasterJoke Theatre.” A pompous egghead smoked a pipe in a leather-bound chair in a richly appointed library, told a joke, and got a pie in the face for his trouble. What the Democrats launched on the Hill this week is their own variant, ... Read More

A Defining Statement of Modern Conservatism

The greatest documents in American history never lose their ability to astonish. They deserve, and repay, careful study, and inevitably have contemporary resonances no matter how long ago they were written or uttered. There’s no doubt that Ronald Reagan’s “A Time for Choosing” belongs in the top ranks ... Read More
White House

The Russian Conspiracy That Won’t Die

The Mueller report accomplished nothing. Whether you thought that the two-year, $32 million investigation was warranted or not, the report promised to establish a factual record that both sides could accept, especially on the explosive charge that Donald Trump had conspired with the Russians to win the ... Read More