Some Republican Senators are contemplating an attempt to change the rules for confirming Supreme Court Justices. Under their proposal, confirmation could occur with only a bare majority, as it now can for lower court judges and cabinet members. Lamar Alexander and Roy Blunt are behind the push for this change.
I find no merit in it. Sure, the change would make it easier for a Republican president to have Supreme Court nominees confirmed. But when will we have a Republican president? No one knows.
It’s clear, on the other hand, that we will have a Democratic president until 2017. Why make it easier for Obama high court nominees to be confirmed? It seems insane to do so.
Republicans, to be sure, have enough votes to block an Obama nominee, but only if nearly every Republican is on board. It’s far from clear that Senate Republicans would rally to defeat an Obama nominee unless he or she has an egregious record. Lisa Murkowski, Lindsey Graham, and John McCain (to name three Senators) tend to defer to the president in these matters. Mark Kirk faces a very tough re-election campaign in a dark blue state.
In 2017, Republican representation in the Senate is likely to decrease, and it’s possible that Democrats will have a majority. Thus, any hope of blocking the nominees of Hillary Clinton (or any Democratic president) would very likely depend on retaining the filibuster.
If Republicans win the White House and keep control of the Senate, they can consider abolishing the filibuster. At that point, there will be an obvious upside to doing so. Right now, an upside is lacking.
It’s possible that in 2017 Republicans will control the White House but not the Senate. In this scenario, the GOP will be better off if there is no filibuster because Supreme Court nominees could be confirmed with only minimal support from Democratic Senators. However, if Republicans abolish the filibuster now, what is to prevent Democrats from reinstating it in 2017, assuming (as we do in this scenario) they control the Senate at that point?
So far, I haven’t discussed the merits, partisan politics aside, of allowing Supreme Court nominees to be filibustered. Alexander and Blunt point out that for nearly all of our history, Justices could be confirmed with only a majority of the Senate vote.
But Supreme Court Justices weren’t always as important as they are today. These days, with presidents so assertive in expanding executive power and Justices so immodest about asserting theirs, Anthony Kennedy is probably the second most powerful man in America. As such, there’s a good case, partisanship aside, for requiring confirmation by a super majority.
The effect of a super-majority requirement is to deter presidents from nominating “extremist” would-be Justices (or at least would-be Justices who have shown themselves to be extreme). That’s a mixed blessing. One man’s extremist is another’s brilliant jurist. Conservatives don’t want a Court of nine Ruth Ginsburg’s and liberals don’t want a Court of nine Antonin Scalia’s. But who wants a Court of nine Sandra Day O’Connor’s?
The Alexander-Blunt proposal doesn’t require us to adjudicate this or other questions of jurisprudence. Common sense is a sufficient guide. The modern Supreme Court is too important for a game of Russian roulette.