Don’t Bring Back the Judicial Filibuster

Published November 5, 2014

National Review Online

In Tuesday’s elections, Republicans won control of the Senate and expanded their majority in the House. In the coming weeks and months, Republicans in Congress must focus on developing and pursuing a winning agenda over the next two years — an agenda that will help elect a Republican president in November 2016 and provide that president with a governing majority in Congress. But a small cadre of current and former Senate staffers is instead pressing Republican senators on what strikes me as a profoundly foolish and destructive diversion: reinstating the filibuster — more precisely, the 60-vote cloture threshold — for lower-court (and executive-branch) nominees.

Some brief background: A year ago, proving that they can dish it out but can’t take it, Harry Reid and other Senate Democrats used a parliamentary maneuver to abolish the filibuster for lower-court and executive-branch nominations (but not for Supreme Court nominations). While it’s proper to condemn the Democrats’ crass opportunism, their abolition of the judicial filibuster reestablishes the operational status quo that long prevailed in the Senate — before, that is, Democrats launched their unprecedented campaign of partisan filibusters against President George W. Bush’s nominees in 2003. Reestablishment of that status quo is exactly what Senate Republican leadership and nearly all Republican senators were aiming to do when they tried to abolish the judicial filibuster in 2005.

The impact of reinstating the filibuster for lower-court nominees would likely be trivial during the last two years of President Obama’s administration. Republicans will already have multiple backstops against unacceptable judicial nominees. Senator Chuck Grassley, as chairman of the Senate Judiciary Committee, could simply deny hearings to such nominees, just as Democrat Pat Leahy did to George W. Bush nominees when he was committee chairman in 2007 and 2008. If the nominee’s objectionable features surfaced only in the hearing, the Republican majority on the committee could defeat the nomination in committee. If the committee somehow reported such a nomination to the full Senate, Mitch McConnell, as the new majority leader, could simply refuse to schedule a vote on the nomination. And, of course, the Republican majority in the Senate could defeat a bad nominee on a straight up-or-down vote. So the weapon of the filibuster would not add meaningfully to the arsenal that the party in control of the Senate already has available.

The greatest impact of reviving the judicial filibuster would come in 2017 — if a Republican president has been elected and Republicans retain control of the Senate. In that scenario, the judicial filibuster would confer on the Senate Democratic minority massive power over judicial nominations and thus deprive the Republican president of a governing majority. Indeed, Democrats would be even freer to abuse the judicial filibuster than they even were in the George W. Bush years, as Republicans, having revived the filibuster during Obama’s last two years, would be especially vulnerable to charges of unprincipled opportunism if they then acted to curtail it.

There are, of course, three other basic scenarios possible in 2017. If we have a Republican president but Democrats have retaken control of the Senate, the Democrats would be content just to leave the filibuster in place for that presidency. If we have both a Democratic president and a Democratic-majority Senate, the Democrats are sure to abolish the filibuster at the first opportunity. And if we have a Democratic president and Republicans hold onto their Senate majority, the filibuster would continue to be a tool of very limited or dubious utility to Republicans.

Considering these scenarios together yields the unsurprising conclusion that the predominant effect of Republican restoration of the judicial filibuster would be to seriously impair the ability of Republican presidents to get their ideal judicial nominees confirmed. That, of course, is exactly what anyone ought to expect from an asymmetric situation in which Senate Democrats, when they’re in the majority, abolish the judicial filibuster and in which Senate Republicans, when they’re in the majority, reimpose it. When Democrats control the Senate, liberal nominees would need only a simple majority to get confirmed, but when Republicans control the Senate, conservative nominees would have to pass the much higher threshold of 60 votes.

What, then, could induce any Republicans to entertain the idea of restoring the judicial filibuster? Well, let’s consider the two arguments (or perhaps the two variants of a single argument) that I’ve encountered from proponents.

The first argument is that it’s important to restore the grand traditions of the Senate that make it a very different body from the House. For present purposes, I’ll happily accept the premise of the argument and simply point out that it is misplaced. The longstanding tradition of the Senate, which prevailed throughout American history until Democrats flouted it beginning in 2003, is that the partisan filibuster of judicial nominees is an unacceptable tool of obstruction. Before 2003, the only filibuster of a judicial nominee was thebroadly bipartisan filibuster of LBJ’s effort to elevate Abe Fortas to be Chief Justice in 1968. (See point 1 here and this post for more details on the Fortas filibuster.) Leaving in place the abolition of the filibuster for lower-court judges respects that tradition. Reimposing the filibuster wouldn’t.

The second argument that proponents make is that reinstating the judicial filibuster is necessary or useful to help preserve the legislative filibuster. But this argument also flies in the face of actual Senate traditions. The long-settled tradition of the Senate has been to treat debate over nominations and legislation very differently. Filibusters over legislation date back to the 1830s. By contrast, nominations (as this law-review article co-authored by parliamentary expert Martin B. Gold puts it) were “swept into” a reform of the filibuster only in 1949 and “only by happenstance.” And, as discussed in the preceding paragraph, even after this nominal inclusion of nominations in the filibuster rule in 1949, Senate practice continued to regard the partisan filibuster of judicial nominees as illegitimate.

It is true, to be sure, that the same means that Senate Democrats used in November 2013 to abolish the filibuster for lower-court nominees is available to abolish the legislative filibuster. But there has long been Senate precedent for that means (see, e.g., Gold article at pp. 260–269). The legislative filibuster owes its continued existence not to any formal obstacle that would prevent a Senate majority from abolishing it but rather to a widespread (if increasingly fragile) consensus that it is valuable.

Insofar as there is any practical link between abolition of the judicial filibuster and abolition of the legislative filibuster, it is the opposite of what the proponents of reinstating the judicial filibuster imagine. Appeasement doesn’t work. If Senate Democrats discover that, far from exacting any price for abolishing the judicial filibuster, Senate Republicans will simply reimpose the filibuster to the detriment of Republican presidents, they will have all the more incentive to abolish the legislative filibuster when the short-term benefits of doing so are high.

It’s easy to understand how Republican senators, angry at Harry Reid’s duplicity, could initially focus myopically only on the very modest short-term advantage of restoring the filibuster for Obama’s last two years. But it’s far more difficult to imagine how Republican senators could, after serious reflection, take that step.

It’s also farfetched to believe that the proposal to restore the filibuster has any prospect of success. Based on my own discussions with several Republican senators, I think that it’s clear that there is no consensus in support of the proposal. (Some 15 or more current Republican senators were among those Republicans who in 2005 overwhelmingly supported abolition of the filibuster.) To have any hope of being durable, the filibuster proposal would need strong support from Senate Democrats. But Democrats won’t want to do anything that even conceivably might make confirmation of Obama’s judicial nominees one bit harder, nor would they want to take a step that would signal that their abolition of the filibuster — a high moment for the Left — was a mistake. Further, they have reasonable hopes that a Democratic president will be elected in 2016 and that Democrats will regain control of the Senate, so they have no interest in making the judicial filibuster durable.

That the filibuster proposal has no realistic chance of success makes it all the more foolish to pursue it. In place of measures that would unify the Republican caucus, the proposal would threaten to divide Republican senators. Indeed, the only possible upside from the filibuster depends on the highly dubious judgment that, in a Democratic administration, 41 or more Republican senators are far more reliable opponents of bad judicial nominees than the remaining Republican senators are. (Again, any possible upside is swamped by the massive downside of conferring on a Democratic minority effective veto power over a Republican president’s nominees.)

The only real prospect for much-needed improvement in the federal courts requires a good Republican president and a Senate Republican majority that can exercise its majority power to confirm good nominees. It would be a massive folly for Senate Republicans to deprive themselves of that power.

— Ed Whelan is president of the Ethics and Public Policy Center.

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