NRO:
One of the most obvious, enduring benefits of the Republicans’ resounding victory on Tuesday will be their ability to check the president when it comes to judicial nominations. Especially since the end of the judicial filibuster almost exactly one year ago, the president has filled the federal judiciary with all manner of unsuitable nominees, in thrall to liberal judicial ideology and eager to rubber-stamp the president’s agenda.
Republicans now have a chance to stop, or at least dramatically slow, that trend. Yet some have suggested a rule change, too: They suggest that the new majority should restore the filibuster for judicial and executive-branch nominees, requiring 60 votes to end debate.
This makes little sense as a principled statement and is deeply unwise as a practical matter. While the legislative filibuster enjoys a long tradition in the Senate, that’s not the case for the judicial filibuster. Indeed, although the judicial filibuster became nominally available in the first half of the 20th century, it never became part of the upper chamber’s practice. Senate Democrats more or less destroyed this precedent in the mid 2000s when they filibustered a number of President George W. Bush’s judicial nominations. In response, Republicans mooted the reasonable idea of eliminating the 60-vote requirement for judicial nominees.
That was met with much hysteria from Democrats, and key senators from the two parties reached another agreement. Last year, the same Democrats implemented the idea, “the nuclear option,” they had once excoriated Republicans for pursuing — and they did so with regard to executive-branch nominees as well as judges.Debates over practical advantage and principle have to be based on reality, and the reality is that Democrats have for a decade now shown a willingness to dispense with historical precedent on many more matters than just the filibuster.
If Republicans bring back the filibuster, Democrats will surely abolish it the next time they have a Senate majority and the presidency. So Republicans would effectively be demanding 60 votes for their nominees in a Republican Senate knowing that Democrats would probably rely on just 50 votes for theirs. As for principle, the status quo of the U.S. Senate before Democrats sabotaged it in the new millennium was that the president’s judicial nominees were not filibustered. Bringing back the judicial filibuster would be more antiquarian and quixotic than restorative.
I expect Harry Reid to try to rush though as many judicial appointments as possible to stack the courts with as many activist judges as he can, while he can.