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Don’t Fear the End of the Filibuster For Judicial Nominees

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Robert Wilkins is now the third nominee to the D.C. Circuit to be filibustered by the Republican minority. I blame Barack Obama and his unprecedented decision to “pack the court” by using his Article III powers to fill existing judicial vacancies.

Logically, this should compel Senate Dems to blow up the filibuster for judicial appointments, particularly since Republicans are essentially not even bothering to make a plausible case against individual nominees but are just opposed to Obama making nominations in principle. But I’m still skeptical that they’ll pull the trigger. I think this kind of fear might preserve the de facto supermajority requirement:

Democrats, in response, are using the same nuclear-option threat Republicans used in 2005 (and which Democrats used to open a blockade on executive-branch appointments earlier this year). That is certainly a troublesome remedy — it would give a president whose party controlled the Senate nearly unlimited leeway to seat ideologically congenial judges on the federal courts. The ideal solution would somehow compromise between the president’s absolute power to seed the judiciary and the Senate minority’s absolute power to blockade it.

Chait, at least, prefers the abolition of the filibuster for judicial nominees to the status quo. But I don’t really understand the fear of abolishing the filibuster because of what might happen. Two points seem relevant:

  • To see what would happen if the filibuster wasn’t used against judicial nominees, we would have to imagine a scenario…exactly like all of American history between the ratification of the Constitution and the filibuster of Abe Fortas nearly 200 years later.  It’s not clear why this was any worse than the current institutional arrangement.  Obviously, the Supreme Court did a lot of bad stuff during this period, but this wasn’t because of the filibuster.  (The awful white supremacist Supreme Court decisions of the late 19th century were the work of Republican nominees who were confirmed by huge majorities, often by voice vote.   Roger Taney was a mainstream Jacksonian Democrat; Peter Daniel, the one member of the Dred Scott majority who could reasonably be considered a Southern radical by contemporary standards, was confirmed 25-5. And so on.  Plessy and Dred Scott, like most bad Supreme Court decisions, are much more of symptoms of a bad political mainstream than causes, and hence are evils the filibuster is particularly unlikely to prevent.)   The only successful use of the filibuster in the history of Supreme Court nominees had, like most filibusters do, reactionary consequences, giving Richard Nixon one and perhaps two extra Supreme Court nominees.
  • A contemporary Republican president could, indeed, appoint a lot of horrible people given a Senate majority.  But since with the filibuster Bush not only got people like Janice Rogers Brown and Priscilla Owen confirmed to the circuit courts but Sam Alito, the most reactionary Supreme Court justice since James McReynolds, confirmed to the Supreme Court it’s not obvious to me how the filibuster is moderating Republican appointments.

Republican presidents will appoint awful judges with or without a filibuster. Which, as long as Democrats can do the same, is how it should be because elections matter and governments should be able to govern. There’s no reason to maintain the filibuster.

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