THE JUDICIAL FILIBUSTER AND THE FALLACY OF “UNILATERAL DISARMAMENT”

Politico reports what’s been pretty clear for weeks — Republicans are unlikely to reverse Harry Reid’s elimination of the filibuster of presidential nominees. My preference was to reinstate the filibuster for the reasons I presented here. However, I understand the arguments for keeping it, and consider the issue a close call.

What bothers me is the mantra that reinstating the filibuster would amount to “unilateral disarmament” by Republicans. It’s an odd description of an act that would, for the next two years, make it more difficult for President Obama to have his way on nominees. A better description, at least in the short-term, would be “unilateral armament” by the GOP.

What about the long-term, though? Opponents of reinstating the filibuster argue that the ultimate impact of doing so would be “a self-imposed 60-vote threshold for nominations by Republican presidents and a 50-vote threshold for nominations by Democratic presidents.” Why? Because Democrats will embrace the 60-vote threshold when there is a Republican president and change (if they can) the threshold back to 51 votes as soon a Democrat becomes president.

I have no doubt that the Democrats will act just this way. But Democrat “armament” won’t leave Republicans disarmed. Say, for example, Republicans win the White House and still control the Senate, but not with enough votes to get to 60 on nominations. If the Democrats obstruct judicial nominees, Republicans can change the rules again and return the confirmation threshold to a simple majority.

Republicans almost certainly would do so. They almost did it during the Bush years, when the Gang of 14’s last minute compromise prevented this move. Back then, changing the rule was considered a huge deal, to the point that it was dubbed “the nuclear option.” Now that the Democrats have gone nuclear (with virtually no peep from the media), nothing stands in the way of Republicans doing the same thing, on the same theory — we tried in good faith to respect “Senate tradition” by operating under the filibuster system, but the opposition grossly abused it.

The alternative to eliminating the filibuster in these circumstances would be to stand by and watch while a Republican president is unable to confirm conservative nominees. After what Harry Reid did, this almost certainly won’t happen.

Keep in mind that, going forward, the Republican Senate caucus will be a considerably more forceful and conservative crew than the one that nearly invoked the nuclear option during the Bush years. Since then, the GOP has added the likes of Ted Cruz, Mike Lee, Marco Rubio, Ron Johnson, Tim Scott, Tom Cotton, and Joni Ernst. Meanwhile, four of the seven Republican Gang of 14 members have departed — Sens. Warner, Snowe, DeWine, and Chafee (as, shortly, will have all Democratic members, assuming Mary Landrieu loses on Saturday). These days, we can expect the Republican caucus to be as opportunistic as its counterpart across the aisle, at least on a matter like the filibuster where the Dems fired the first shot.

There is a respectable case for the confirmation rules the way they are. But calling the alternative “unilateral disarmament” seriously overstates that case.

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