Should Republicans reinstate the judicial filibuster?

With Republicans about to assume control of the Senate, a debate has broken out over whether to bring back the filibuster for judicial nominees. Readers will recall that Harry Reid and his crew eliminated the filibuster (except for Supreme Court nominees) in order, primarily, to confirm three left-wing nominees for the all-important U.S. Court of Appeals for the District of Columbia Circuit.

The estimable Ed Whelan argues that it would be folly to reinstate the filibuster. A group of highly respected conservative legal analysts has written a memorandum to Republican Senators that argues the same thing.

However, I’m inclined to think that Republicans should bring back the filibuster.

On the merits, there is no magic number of Senators whose votes should be required to confirm a judicial nominee. I could make a decent argument for 51, for 60, or for any number in between.

The important thing is that the rules be the same for both political parties.

On the surface, this argues for leaving the number where it is now — at 51. But the real rule the Democrats are operating under is that they will choose the number that best serves their interests at a given time, and will change the rules to suit their purposes.

When George Bush was president, Democrats insisted that the number be 60; otherwise, they said, deep principles regarding the role of the Senate would be compromised. Under Barack Obama, though, they cast these alleged principles aside and changed the rules to allow confirmation by a simple majority.

Their pretext? Republicans were grossly abusing the filibuster.

Republicans should be similarly opportunistic, lest they be disadvantaged in the all-important judicial wars.

The next two years are the functional equivalent of 2007-2008. During that period, the Senate could not confirm Bush’s judicial nominees without 60 votes. It should not be able to confirm Obama’s without that same number.

In theory, the Republicans have the votes to defeat nominations even under the new rules. But Senators like Lisa Murkowski and Lindsey Graham have been highly deferential to Obama’s nominees. Thus, in theory, it matters whether the threshold is 51 and 60.

Ed Whelan argues that, in practice, the number doesn’t really matter because Republicans, now that they control the Senate, can block bad nominees through inaction. However, Republicans will take significant (and deserved) heat if they sit on nominations for, say, a year and a half. Why subject Senate Republicans to that kind of pressure? Why create an issue with which Democrats can attack Republican incumbents in the tough election cycle of 2016, when, unlike this year, Republicans will have to defend seats in Blue and Purple States?

The main reason advanced for doing so is that Republicans might capture the White House in 2016. In that event, they will want to be able to confirm the president’s nominees with 51 votes.

But if Republicans also control the Senate in 2017, and the Democrats systematically obstruct judicial nominations, the Republicans can change the magic number back to 51. Democrats would howl, and the media would join the chorus. But the Republican response would be the same as Harry Reid’s when he flip-flopped on this issue — we tried in good faith to operate under the filibuster system, but the opposition grossly abused it.

Democrats lost the Senate on Tuesday for a number of reasons. Changing the judicial confirmation rules wasn’t among them.

Now, let’s assume that Republicans capture the White House, but Democrats regain control of the Senate. In this scenario, the Dems will be happy to keep the magic number at 60.

Does this mean that Republicans will have shot themselves in the foot by reinstating the filibuster? Only if one assumes that the Dems wouldn’t have reinstated the filibuster themselves as soon as doing so served their interests.

Given the Democrats’ record of hypocrisy, I don’t make that assumption. I can hear Harry Reid or his successor arguing that, say, President Cruz has forced the reinstatement of the filibuster by nominating a series of judicial extremists who respect neither women, blacks, nor the Constitution itself.

Let’s complete our analysis of possible 2016 scenarios. The Democrats might capture the White House while Republicans retain control of the Senate. In that case, Republicans will benefit from having reinstated the filibuster.

Finally, the Dems might control both the White House and the Senate. In that case, they will change the number back to 51 and the only impact of Republicans having reinstated the filibuster will have been their ability to use it against Obama nominees in 2015-16.

The matter isn’t free from doubt, but on balance I favor reinstating the filibuster.

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