The Corner

Law & the Courts

Exaggerating the Impact of Supreme Court Filibusters

University of Washington law professor Lisa Marshall Manheim writes that by ending the possibility of filibusters of Supreme Court nominations, Senate Republicans have worked a “realignment of checks and balances” that threatens to make the Court “more polarized and less stable.”

No longer must a president appeal to 60 senators from across the country, representing a range of interests, to shepherd a nominee through the process. Now all a president needs is a bare majority. . . .

In short, future Supreme Court nominees are less likely to be compromise candidates, which means the Supreme Court of the future may be less likely to maintain the sort of long-term ideological balance that we have today.

Let’s leave aside the portions of the argument in which Manheim suggests that we should all be grateful that Justice Anthony Kennedy is the most powerful person in American government. Is it really credible that the Supreme Court filibuster has been a powerful check on the appointment of justices?

No, it isn’t. The minority party had never previously succeeded in using a filibuster to block a Supreme Court nominee; two of the justices who were sitting on the Court before this weekend were confirmed by fewer than 60 votes; and the period of time during which people have been talking about mounting partisan filibusters of Supreme Court nominees–roughly, the last dozen years–is coterminous with the period of time during which people have been talking about changing the rules so that they couldn’t happen. Filibusters of Supreme Court nominees and the threat of such filibusters just haven’t played the historical role that Manheim’s argument assumes they have. As I wrote the other day, the end of Supreme Court filibusters cost both parties a power they had never exercised, and probably were never going to be able to exercise, effectively.

Ramesh Ponnuru is a senior editor for National Review, a columnist for Bloomberg Opinion, a visiting fellow at the American Enterprise Institute, and a senior fellow at the National Review Institute.

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