Bench Memos

Senate Republicans “Unlikely” to Reinstate Judicial Filibuster

That welcome news comes from this Politico article. Some highlights:

[A] number of senior GOP senators like Orrin Hatch of Utah and even junior Republicans like Ted Cruz of Texas are signaling privately and publicly that they want to stay at the 50-vote threshold set by Reid’s Democratic Senate majority.…

Kentucky Sen. Mitch McConnell, the incoming majority leader who has not publicly taken a position on the matter, has been making the argument privately that it’s long been historical precedent that a simple majority of senators — not 60 — have been able to confirm presidential nominees, according to several senators.

Others have been more forceful, saying it makes little sense to engage in a messy fight over the filibuster rules when Democrats may lower the threshold again should they take the majority in 2016 or beyond. Now that the Democrats have changed the rules, future Republican presidents, too, should benefit from a weaker filibuster, several GOP senators said Wednesday.

The change that Democrats made was “long-term and permanent,” said Sen. Roy Blunt (R-Mo.), a member of his party’s leadership.

“I think it’s well within the traditions of the Senate for a majority to decide nominations and a supermajority to decide legislation,” Blunt said….

[John] Cornyn said he had not taken a position yet but added that Republicans “have to recognize that if Democrats got the majority again, no matter what we did, they would probably take it back to 51. They’ve really shown their colors on that.”

Cruz, the Texas firebrand and potential presidential candidate, has privately voiced a similar view, arguing that Democrats would simply change the filibuster rules later if Republicans acted now, sources said.

A number of senators are reluctant to engage in a messy fight right off the bat in a new majority. Kansas Sen. Pat Roberts, the ranking member of the Rules and Administration Committee, said the new GOP-led Senate should first focus on bipartisan votes before acting on the filibuster.


The article also nicely explains how, even if Republican sentiment were otherwise, there’s no good procedural route to reimpose the filibuster.

 

According to the article, the idea of reinstating the judicial filibuster will be discussed by Republican senators at a meeting next Tuesday. Let’s hope this very bad idea dies a very quick death.

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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