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? 

Ed Whelan holds the Antonin Scalia Chair in Constitutional Studies at the Ethics and Public Policy Center and is a regular contributor to National Review’s Bench Memos blog.
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