Don't bring back the judicial filibuster

If Republicans bring back the filibuster, Democrats will surely abolish it the next time they have a Senate majority and the presidency. So Republicans would effectively be demanding 60 votes for their nominees in a Republican Senate knowing that Democrats would probably rely on just 50 votes for theirs. As for principle, the status quo of the U.S. Senate before Democrats sabotaged it in the new millennium was that the president’s judicial nominees were not filibustered. Bringing back the judicial filibuster would be more antiquarian and quixotic than restorative.

Some conservative defenders of the filibuster worry that the minority could somehow peel off enough Republican support to confirm nominees that most conservatives do not support. This is exceedingly unlikely in a body structured like the Senate — Republican leadership and conservatives retain plenty of ways to ensure that only nominees they assent to will get to a full confirmation vote.

In any case, the benefits of having no filibuster for judicial nominees, when a Republican makes it to the White House, far outweigh whatever exceedingly slim chances there are of the above scenario. As Senator Orrin Hatch has pointed out, Democrats have done a great deal of damage to our judiciary in just the short time since Majority Leader Reid embraced his General Ripper. Republicans would be foolish to disarm themselves in the fight back. Other practical benefits to the 51-vote threshold, such as easier executive-branch and commission appointments for a future Republican president, should also not be overlooked.