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For those of us who oppose the filibuster, Publius puts forward an interesting twist:
There is one exception though – one context where I would continue supporting the right to filibuster. And that’s judicial nominations. I actually first read this idea from Kaus, but I think the logic is pretty sound.Article III judges serve for life – it’s practically impossible for a new majority to undo a prior president’s appointments. And federal judges are of course extremely important – they are the nation’s only unaccountable policymakers (they’re accountable in theory via impeachment, but not really in practice).For these reasons, it makes sense to impose an effective supermajority requirement on approving federal judges.One useful thing about this is that it makes clear how silly ad hoc Republican arguments against filibustering judicial appointees were; if anything, the filibuster is more defensible for lifetime appointments to an independent branch than for ordinary legislation. What was actually going on was that while filibustering legislation serves almost exclusively reactionary ends, filibustering is something available to both sides, and for obvious reasons Republicans much preferred its effects one-sided. So, if I were designing institutional rules from scratch, I would probably support Publius's exception. In practical terms, though, this seems unlikely. Illogical as it is, there seems to be an idea that filibustering judicial appointments is uniquely problematic rather than uniquely justifiable, so in practical terms it seems likely that an end of the filibuster is likely to start with removing it form judicial appointments first. And, ultimately, that's fine; in general, although filibusters against judges weren't used until 1968, the median vote on the Supreme Court has generally been very centrist and continues to be. If getting rid of the filibuster requires getting rid of it in all cases, that's fine with me.--Scott Lemieux
