September 23, 2013
Republicans filibustering judges
(AP Photo/Carolyn Kaster)

Once again, just as in July, it’s time for reasonable Republicans to save the filibuster.

Back then, the crisis was over executive branch nominations, with fed-up Democrats ready to go with majority-imposed rules reform if Republicans persisted in “new nullification” filibusters in which they attempted to shut down federal agencies by refusing to confirm anyone to vacancies that needed to be filled for the agency to function. And in fact several Republican Senators stepped up and voted for cloture on those nominations. It saved the filibuster.

Now we get take two, this time on judges. There’s a much better case for filibusters on lifetime judicial nominations than there is for executive branch nominations, which are mostly just about an elected president influencing executive branch departments and agencies (and the Senate, with confirmation, also wielding its influence). But the key here, as it was with executive branch nominations, is GOP overreach. In this case, there is the possibility that Republicans are going to blockade the DC Circuit Court, defeating by filibuster every nominee because of a transparently phony theory that the three vacancies on that important panel never need to be filled.

Many observers believe that a single major episode of majority-imposed reform would lead rapidly to majority-imposed reform across the board, leading rapidly to the House-ification of the Senate. So for the filibuster to survive, each of these showdowns needs to be resolved with the majority getting enough that they are willing to go forward without formal rules changes (or, I suppose, with rules changes that both parties support).

I’ll repeat what I said back in June: It’s up to the Republicans. The 60-vote Senate is unsustainable, but occasional filibusters work just fine, and are a practice worth preserving. So the GOP needs to choose which one it wants.