I suppose it’s natural for Klobuchar to express regret over the decision. Republicans cited it as grounds for eliminating the filibuster for Supreme Court nominees. This enabled them to confirm Neil Gorsuch and, in all likelihood, will enable them to confirm Brett Kananaugh.
I’ve come to believe, however, that the filibuster had to go — if not during the Obama administration than under President Trump. Why? Because it’s no longer possible, under ordinary circumstances, to get 60 votes to confirm nominees for the Supreme Court, and even courts of appeals, who share the president’s view of judging and the Constitution.
Think about it. How many of the eight current Supreme Court Justices could get 60 votes today in a Senate where the nominating president’s party holds less than, say, 56 seats? Given what we know now about the eight Justices, the answer is none.
How many of the eight would be confirmed in today’s environment knowing what was known about them when they were nominated, plus what would be unearthed about them in this era of over-the-top research of nominees? Probably none, though Justice Breyer might have a chance.
It’s not just that the political parties are now so polarized. It’s also that the law has become thoroughly politicized. Judges are political actors now in cases with political ramifications, and more and more cases carry political ramifications.
The only nominees above the district court level likely to gain 60 votes in a normal Senate would be nominees with a scant judicial and political track record and judges whose track record is so wishy-washy that no president would want to nominate them. Neither party wants those kinds of judges.
Thus, Klobuchar shouldn’t regret ending the filibuster for nominees below the Supreme Court level. It enabled the Democrats to land the first punch — President Obama’s packing of the U.S. Court of Appeals for the District of Columbia, the nation’s second most important court.
Sure, the GOP is hitting back harder now. But even without the Democrats’ move, Republicans would have ended the judicial filibuster, as they came close to doing during the George W. Bush administration. They simply would not have tolerated the obstruction of two Supreme Court nominees, plus virtually every Trump court of appeals nominees.