It has critics elsewhere, too. Matthew Yglesias faults NR, first, for ignoring various points he thinks it ought to have addressed. “That the Senate rules do, in fact, allow for filibusters is not mentioned. Nor is the fact that changing the Senate’s rules does, in fact, require 67 votes.” Well, sure, the editorial doesn’t explicitly say that the Senate rules allow for filibusters. But since it explicitly advocates a rules change to end filibusters against judges, such an acknowledgment would seem to be unnecessary. And changing the Senate’s rules does not, “in fact,” require 67 votes. It is entirely possible that the Senate will vote to change them by 51 votes–something that the Senate rules also allow for.
Second, Yglesias says that the idea that conservative judges would allow voters and legislators to decide more policy issues–and that this is the reason liberals object to them–is “a load of crap” that NR writers “don’t believe for a minute.” Many conservative jurists, he notes, would be “far more eager” to strike down economic regulations than liberals. He could have added campaign-finance regulation and, more arguably, racial preferences, as other issues where conservative jurists would be more likely than liberals to strike down democratically enacted laws.
Now that strikes me as a fair point–which may be a function of the fact that I am much less gung-ho about judicial invalidation of campaign-finance laws, racial preferences, and certain economic regulations than other conservatives. But I think that the editorial’s generalization is nonetheless sound as a generalization.
I don’t assume that all conservative judicial nominees are going to be Richard Epstein clones; I assume, rather, that very few of them will be. (Janice Rogers Brown being the one about whom I have the most concerns.) I think that at the most, you’d have judges who try to advance the Rehnquist federalism “revolution.” And that revolution has restricted democratic self-government hardly at all. Almost all of the laws that have been struck down could be rewritten in a way that would not change their substance but would pass muster under the Court’s federalism jurisprudence. (For example, the Gun-Free Schools Act could have been rewritten so that states’ keeping their schools “gun free” was a condition for continued receipt of federal subsidies.) For the federalism revolution to actually start restricting democratic self-government, Justice Thomas’s concurrence in Lopez would have to have four more allies.
Now liberals (or other conservatives) might well see the federalism cases as a bigger deal than I do. But I don’t think it is true that no conservative could reasonably regard them as a minor issue (as I do) or think that they are not what the current judicial-confirmation debates are about (as I also do).