Bench Memos

Re: Reinstating Judicial Filibuster Would Be Massive Folly

In the face of the wise counsel set forth by Senator Hatch and lots of conservative leaders, I’m sorry to report that a handful of Senate staffers continue their stealth campaign to induce Senate Republicans to reinstate the judicial filibuster. My NRO essay on the topic yesterday triggered a long and contentious exchange with one Senate staffer on a group e-mail. Consistent with the norms governing that group e-mail, I won’t get into any of the specifics, but I won’t pretend to have found charming or encouraging the staffer’s combination of diversionary potshots and rank jackassery.

I invite any Senate staffers who support the reinstatement proposal to respond to the same question I posed to the staffer in the e-mail exchange: What possible reason is there to think that Democrats, when they regain control of the Senate, wouldn’t abolish the judicial filibuster as soon as there is a Democratic president? And if you don’t have a compelling answer to that, why are you supporting a change that would mean that when Democrats control the Senate, liberal nominees would need only a simple majority to get confirmed, but when Republicans control the Senate, conservative nominees would have to pass the much higher threshold of 60 votes? 

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