Why Mitch McConnell should eliminate the judicial filibuster

While it’s senators’ prerogative to vote against any nominee they think would be bad for the country—I previously argued that Republicans should vote against essentially all judges Hillary Clinton names—judicial filibusters have always struck me as strange and sordid. Until Democrats began a systematic blockade of George W. Bush’s judicial nominees in 2003 (most notoriously Miguel Estrada, because of his ethnicity), the only judicial filibuster was the bipartisan opposition to Lyndon Johnson’s attempt to elevate Abe Fortas to chief justice in 1968.

The Senate runs largely on tradition and precedent, and while the idea that a super-majority is needed to allow legislation to proceed to a final vote is seen as part of the body’s “cooling off’ function, filibustering nominations has long been considered illegitimate. Accordingly, when Harry Reid (D-NV) abolished the filibuster for executive and lower-court nominations in November 2013, he ironically restored Senate practice to what it was before his own machinations of a decade earlier. (Would that Bill Frist (R-TN) had acted so boldly then.)

There’s no reason not to extend that “nuclear option” to the Supreme Court as well, as progressive legal scholar Erwin Chemerinsky argued three years ago. The one wrinkle is that such a move must wait until an actual nominee is actually filibustered.

I had been arguing to colleagues that McConnell should preemptively use his majority to eliminate the judicial filibuster, maybe even before Trump is inaugurated. The main argument against that position seemed to be tactical: why not hold that “thermonuclear option” in reserve until needed, extracting political concessions in the meantime? But a friend with intimate knowledge of Senate procedure informed me that it couldn’t be done in the abstract regardless.