As the Washington Post reported yesterday, Republicans are filibustering an appeals court nominee, Caitlin Halligan. There’s only one way that I could ever support a filibuster like this, and that’s if the filibusterers are supporting a rule change to get rid of judicial nomination filibusters. These are awful for the country, but it’s understandable that Republicans would be doing it now, after Democrats started doing it during the GW Bush administration.
Judicial nomination filibusters are nightmares for the nominees, and many excellent lawyers will refuse to be nominated if it means risking an endless hazing by the Senate. The greatest danger is that this kind of nonsense will soon spread to Supreme Court nominations (the Fortas nomination in the 1960s was the closest thing yet to a SCOTUS nomination filibuster but in that case it wasn’t clear that Fortas would have won a simple majority vote).
Some people say, well, judges serve for life, so requiring a higher threshold for confirmation is wise. But that’s nonsense. As mentioned, good nominees are scared away, but that’s the least of the problem. If the threshold is raised above the simple majority that the founders expected, then the result will be a bunch of mushy, middle-of-the-road conformists on the Court. And what’s wrong with that? Everything. It means that there will be little variation from one presidency to the next, and therefore cases will become entrenched precedents without having to pass muster with a changing Court membership. Court decisions will be based less and less on the objective meaning of our written Constitution, because the judges who make those decisions will know that their successors will probably be mushy conformists like themselves.
It also gives the Senate itself too much power to make demands on the president. If the president and a Senate majority are of the same party, then a Senate minority should not have power to demand a different judicial philosophy. That’s called tyranny of the minority.
Anyway, I adamantly oppose the Halligan filibuster if it continues without an accompanying effort to get rid of judicial nomination filibusters.
UPDATE (March 8, 2013): Another way to look at it is like this. When legislation is filibustered, it’s a way to slow down change, to preserve the law as it is. Not so with judicial nomination filibusters. A minority of 41 Senators who want radical change can simply filibuster until a nominee is produced who meets their demands. Again, this is tyranny of the minority.