What’s happening in the Senate with regard to judges is pretty simple. Republicans are blocking three seats on the U.S. Court of Appeals for the D.C. Circuit, with no real excuse other than “because we can.” Democrats, the party in
What’s happening in the Senate with regard to judges is pretty simple. Republicans are blocking three seats on the U.S. Court of Appeals for the D.C. Circuit, with no real excuse other than “because we can.” Democrats, the party in the majority, have no choice but to tell them: No, they cannot.
Saying that is not what many Senate Democrats want. Most probably prefer a situation in which each party, even when it is in the minority, can exercise a veto on the occasional judicial nominee who they believe is far out of the mainstream. The Senate is a stronger institution when it can use its “advise and consent” role fairly aggressively, even to the extent that the minority party can have considerable influence.
The thing is, this issue is not limited to judicial filibusters. Many Democrats surely believe, correctly, that after the elimination of judicial filibusters it’s only a matter of time before the elimination of all filibusters. The likely result will be reduced influence for individual senators and, probably, overall reduced capacity for the Senate.
And yet, there’s really no choice. Republicans are demanding something unprecedented and unjustified: that Democrats, despite winning the White House and a comfortable majority in the Senate, cannot fill three seats on a crucial federal bench. It is, as Brian Beutler of Salon.com pointed out Wednesday, parallel to the executive branch’s “nullification” fight over the summer.
If Democrats back down from this, they can expect Republicans to expand their obstruction; why wouldn’t they? Once Republicans have 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 U.S. Supreme Court.
All of this 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 the Senate might as well get it over with.
Jonathan Bernstein is a political scientist who writes about American politics.
