It’s no surprise that lots of conservative leaders recognize the folly of the idea being pressed by some Republican Senate staffers to reimpose the judicial filibuster. I’m also glad to see Senator Orrin Hatch weigh in wisely in this Wall Street Journal op-ed (subscriber-only) today that he co-authored with former White House counsel Boyden Gray. Some excerpts:
It will fall to the next Republican president to counteract President Obama’s aggressive efforts to stack the federal courts in favor of his party’s ideological agenda. But achieving such balance would be made all the more difficult—if not impossible—if Republicans choose to reinstate the previous filibuster rule now that the damage to the nation’s judiciary has already been done.
To restore the rule now, after Mr. Obama has installed his controversial judges, would cement a partisan double standard: When Democrats control the White House and Senate, judicial nominations need only 50 votes; but when Republicans control both, judicial nominations require 60 votes, allowing Democratic minorities to block Republican nominations….
Simply put, if Republicans re-establish the judicial-nomination filibuster, it would remain in place only until the moment that a new Democratic majority decided that discarding the rule again would be useful.
Indeed, Republican willingness to restore the old filibuster rule would only increase Democrats’ incentives to engage in further rule changes in the future. If Republicans refuse to hold Democrats to the new nominations rules they set for the Senate, Democrats will have no reason to fear that they may someday bear the costs of their own tactics.
The Senate can and must be restored as a check on executive-branch overreach, a forum for true legislative debate and a bulwark for liberty. But unilateral disarmament on nominations would only invite further damage to the institution.