According to Politico’s report last week, Republican senators are set to meet tomorrow to discuss the terrible idea of reinstating the judicial filibuster. In Politico today, Senator Orrin Hatch (for whom I worked two decades ago) weighs in strongly and soundly against reinstatement. Some excerpts:
[R]eturning to the pre-nuclear option filibuster rule would serve neither the interests of the Senate as an institution, nor constitutionally limited government more broadly.
While the legislative filibuster has been critical to the Senate’s deliberative lawmaking for more than two centuries, use of filibusters to defeat nominees who have majority support is a decidedly recent phenomenon. In fact, the first such nomination filibuster occurred in 2003—hardly an historic practice.…
A temporary return to the 60-vote threshold would last only until the next Democratic majority found abolishing the rule in its political interest.…
[A]n immediate return to the prior nominations standard under Republican control would only reward Democrats for their misdeed and—since they have reaped the benefits but borne none of the costs—Democrats would have further incentive to engage in procedural abuses. Such a return would do nothing to prevent the same cycle of abuse from repeating itself in the future. To safeguard the Senate’s core procedural protections—including the indispensible and truly historic legislative filibuster—Democrats must live with the consequences of such abuses when voters return them to the minority.
As important as the institutional harm to the Senate is the significant damage done to the federal judiciary. Democrats used the nuclear option to pack important courts like the D.C. Circuit with far-left judges, some of whom have already begun to ratify President Obama’s executive lawlessness in health care, environmental regulation, and elsewhere. The next Republican administration will have to work hard to restore balance to the federal courts.
Reinstating the 60-vote threshold for nominees would make this task impossible and serve to perpetuate the imbalance. Republicans would need 60 votes to confirm their nominees, while Democrats needed only 51 votes to confirm their own picks. Such a partisan double standard makes no sense and would cause irreparable harm to our third branch of government. To restore the prior nominations threshold would be to cede the federal judiciary to liberal activists.