James Taranto argues that they shouldn’t. A filibuster would lead Republicans to use the “nuclear option.” “The nuclear option would vaporize the judicial filibuster for good (or at least until a majority of senators agree to reinstate it, which is unlikely since a majority has no reason to filibuster). By contrast, the May filibuster compromise expires at the end of this Congress, in January 2007. The Republicans are believed to have no more than 52 votes in favor of the nuclear option, which means that they would lose the nuclear deterrent if the Dems picked up three Senate seats next year.
“Thus if Justice John Paul Stevens were to retire in 2007, the Democrats could actually use the filibuster threat to force Bush to pick a ‘compromise’ candidate.”
The Democrats may be in a better political position during the next confirmation fight, too, since it would be easier to portray Roe as up for grabs in that one.