November 13, 2013

It’s pretty simple to see what’s happening in the Senate right now with judges. Republicans are blockading three seats on the DC Court of Appeals with no other real excuse than “because we can.” Majority Democrats really have no other choice than to tell them: No, they cannot.

That’s not what many Democrats want. They probably prefer a situation in which both parties, even when they’re in the minority, can exercise a veto on the occasional judicial nomination who they believe is far out of the mainstream. The Senate as an institution is stronger when it can use its “advise and consent” role fairly aggressively, even to the extent that the minority party can have considerable influence.

It’s not just judicial filibusters. Many Democrats surely believe, correctly, that after majority-imposed elimination of  judicial filibusters, it’s only a matter of time before future majority parties eliminate all forms of filibusters. The likely result will be reduced influence for individual senators, and (they may believe, and probably correctly) overall reduced capacity for the Senate.

And yet…there’s really no choice here. Republicans are demanding something entirely unprecedented and unjustified: that Democrats, despite winning the White House and a comfortable majority in the Senate, cannot fill three seats on this crucial federal bench. It is, as Brian Beutler pointed out earlier today, exactly parallel to the executive branch’s “nullification” fight over the summer.

If Democrats back down from this, they can expect Republicans to expand their blockade; why wouldn’t they? Once they’ve redefined “court packing” to mean filling vacant judicial spots, why wouldn’t that apply to any empty seat on the federal bench? Once they’ve supported a principle that preserving the current partisan balance on a court is worthy of a filibuster, why wouldn’t that apply to any court? Including, of course, the Supreme Court.

All of which means that sooner or later, Democrats will have to draw a line. Indeed, the only way to save the filibuster is to threaten, right now, to get rid of it. And if Republicans don’t back down, as they did this summer? Then the filibuster is going to die, so might as well get it over with.