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Remember: Bork Wasn’t Filibustered

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Johnathan Adler is the latest Republican to threaten to do things that Republicans have already been doing and will continue to do:

On the bright side, the era of super-majority votes for judicial nominees is over, and I look forward to seeing the slate of nominees put forward by the next GOP President nominates. Judge Volokh? Justice Barnett? Hmmmm.

Or here are some even more terrifying possibilities: Judge Owen! Judge Rogers Brown! Justice Altio! Justice Thomas! Without the filubuster, who knows, any of those might have happened!

I actually suspect this represents a pretty widespread belief among Republicans, a variant of point #3 in my explanation of why the Republicans screwed up so badly. While in the real world Obama wouldn’t even consider appointing the left-wing equivalent of Rogers Brown or Alito to any federal court, there really do seem to be Republicans who believe that Republican presidents have countered fire-breathing Democratic radicals like Stephen Breyer and Elena Kagan with quiescent moderates. If you believe this — and I suppose it makes more sense if you evaluate judges according to the baseline of constitutional law in 1905 rather than 2005 — then you might think that Republicans will benefit more from blowing up the filibuster.

I will grant that Barnett would be pretty radical even for a contemporary Republican nominee. But this brings us to another point. No conservative nominee to the Supreme Court has ever been successfully filibustered, including Alito and Thomas (the latter in a Democratic-controlled Senate!) So, first of all, getting Barnett confirmed would require Republican control of the Senate, or he could be defeated by a straight up-or-down vote just like Bork was. And if a Republican White House and Senate want to nominate and confirm Barnett, they’d better hope that 3 or 4 more non-Alito/Thomas vacancies come up before the end of that term, because if they nominate a Supreme Court justice explicitly committed to the proposition that Social Security, Medicare, and most of the rest of the 20th century regulatory state is unconstitutional, that will be the last national election they’ll win for a long time. The idea that the filibuster represents the only political constraint on a president’s Supreme Court nominations is bizarre.

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