Supreme Filibusters

If, at the moment, Senate Republicans do not appear inclined to restore the full “right” to filibuster that Democrats so recently modified with respect to executive and most judicial nominations, there is some surprising talk about going in the other direction and banning filibusters of Supreme Court confirmations. But it’s not likely to happen so long as Barack Obama is in office, according to TPM’s Sahil Kapur:

The push to kill the filibuster for Supreme Court nominees is led by Sen. Lamar Alexander (R-TN), who chairs the powerful Health, Education, Labor and Pensions Committee; Sen. Roy Blunt (R-MO), the fifth-ranked Republican; and Sen. Mike Lee (R-UT), a tea party darling.

Alexander argues that because the Senate custom has been not to engage in the filibuster of Supreme Court nominees, any change to the rule would merely enshrine that long tradition of deferring to the President’s nominee.

“That’s the way it’s been for 200 years. I mean, there’s never been a filibuster for the Supreme Court justices,” Alexander told TPM. “Even Clarence Thomas. No Supreme Court justice has ever been denied his seat by a filibuster.”

Hmmm. Had one of the Court’s conservative justices resigned or died in the last two years, when Republicans had just enough senators to sustain a filibuster, does anyone imagine they would not have been under immense pressure to filibuster a liberal nominee from Obama, who might postpone a reversal or serious modification of Roe v. Wade for many years to come? Now, of course, it’s a bit moot, since Republicans can simply vote down an Obama SCOTUS appointee. But as Kapur points out, Democrats have by no means foresworn a Supreme Filibuster.

Still, Mitch McConnell seems to have concluded that he’ll cross that bridge in 2017 if there’s a Republican president and a Republican Senate.

Regular readers know where I stand: filibuster delenda est! Still, if there’s any case where a Senate super-majority is relatively more justifiable, it would be for a life-time appointment to the highest court of the land. But the survival or demise of the Supreme Filibuster will almost certainly depend on the configuration of forces the next time there is an opening on the Court.

Ed Kilgore

Ed Kilgore, a Monthly contributing editor, is a columnist for the Daily Intelligencer, New York magazine’s politics blog, and the managing editor for the Democratic Strategist.