I discussed the filibuster with GOP Senate Leader Mitch McConnell on my radio show and the transcript of that conversation is here. Read the whole thing, but the key paragraphs are these:
HH: Is there a chance now to perhaps reopen that and get a rule that guarantees nominees an up or down?
MM: No, I don’t think so. I think we’ve moved on, and it’s interesting to note who would not have been on the Supreme Court if this had been the norm as recently as twenty years ago. Justice Clarence Thomas, who has been an outstanding Supreme Court judge, in my view, was confirmed only 52-48. And what that meant is not a single member of the Senate, even though 48 Senators were against Clarence Thomas, insisted on having a limitation on debate, in other words, insisted on having a cloture vote to shut down a filibuster. In fact, there was no filibuster. But the Senate, at various points in its history, has had different views over our two hundred years about how the confirmation process should be handled, and I think now it’s very clear that the filibuster will be employed from time to time when a nominee is extraordinarily unfit for the bench, and that’s what happened today.
HH: So if Senator Reid approached you and said Senator McConnell, let’s sit down and fix this, because extraordinary circumstances, that’s the standard in the Gang of 14, I don’t know if the standard you’re applying, it’s so malleable, it’s so subject to abuse, let’s get it fixed, you don’t think that could go anywhere right now?
MM: No, I don’t think so. I think the Senate has sort of settled into a new norm here, which is that hopefully filibusters won’t become a routine as they were ten years ago for President Bush, but they will be used from time to time by the minority, the current minority being Republicans, when we think it is appropriate.
This statement by the GOP Leader completes a major evolution in the rules of the Senate, and not one for the good. The "new norm," if it continues, guarantees terrible, bitter battles ahead and will discourage qualified nominees from considering the job. It is certainly understandable that the GOP simply cannot allow the circuit court nominees of its presidents to be routinely filibustered by Democrats without using the extraordinary power at least occasionally against Democratic presidents to demonstrate that every precedent works against both parties.
Not to use the filibuster on very liberal judges while Democrats blocked mainstream conservatives would be unilateral disarmament in the most important judicial-political battles of the day. It would also guarantee the long-term trend of the judiciary to extravagant activism as left-wing nominees sailed through and conservative nominees were blocked over decades of nominees. The standard cannot be 60 votes fro GOP nominees and 51 for Democratic nominees.
But having now established that what is indeed sauce for the GOP goose is sauce for the Democrat gander, the senior members of the Senate ought to meet to consider a formal rule change that will return the body to its long-established practice of giving all judicial nominees who emerge with a recommendation of confirmation from the Judiciary Committee an up-or-down vote. Leader McConnell has stated to me that this won't happen, but every negotiation worth happening begins with such a declaration.
It may be that the GOP needs to wield the judicial filibuster power once or twice more to even the score from the last decade, and perhaps even against a nominee for the Supreme Court who is outside the judicial mainstream.
But as President Obama's term comes to an end and before the results of the next election are known, it would be good for the courts, for the Senate and for the country if Patrick Leahy's monstrous innovation was stricken from the Senate's set of procedures.
In the decade-and-a-half that I have been teaching Constitutional Law at Chapman University Law School, judicial nominations went from dull affairs punctuated by rare bursts of great drama to a regular feature of the cable television wars. I have told the students that this guarantees a politicized judiciary and a bench of boring, middle-of-the-road time servers who avoid writing anything of interest or controversial content over their entire careers.
This evolution is not in the best interests of anyone, and perhaps the Senate can indeed pull itself back from this brink.