The Defensive Crouch

FILE - This Oct. 8, 2010 file photo shows the justices of the U.S. Supreme Court at the Supreme Court in Washington. Seated from left are Associate Justices Clarence Thomas, and Antonin Scalia, Chief Justice John Rob... FILE - This Oct. 8, 2010 file photo shows the justices of the U.S. Supreme Court at the Supreme Court in Washington. Seated from left are Associate Justices Clarence Thomas, and Antonin Scalia, Chief Justice John Roberts, Associate Justices Anthony M. Kennedy and Ruth Bader Ginsburg. Standing, from left are Associate Justices Sonia Sotomayor, Stephen Breyer, Samuel Alito Jr., and Elena Kagan. The Supreme Court on Thursday, June 28, 2012, upheld the individual insurance requirement at the heart of President Barack Obama's historic health care overhaul. (AP Photo/Pablo Martinez Monsivais, File) MORE LESS
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I haven’t written much this week because I’ve been traveling. But there was one point I wanted to make about the changes to the filibuster rules – particularly the resistance of certain Democratic constituencies to these changes. Yet I see that TPM Reader LF has basically beaten me to it.

Pro-choice groups especially have lobbied hard against abolishing or limiting the filibuster because they want to have it available under a future Republican administration to block an anti-choice Supreme Court nominee. (Not only the choice movement – other important constituencies, but them especially.) I understand the sentiment. But it just totally flies in the face of all evidence and experience from the modern judicial confirmation era – which I’d date from the mid-1970s.

Put starkly, when have Democrats ever used the filibuster to block Republican Supreme Court nominees? Answer: never. You needn’t even look at it from so narrowly procedural a perspective. What about Justices Roberts and Alito? President Bush was able to place maximal GOP choices on the Court both times. And fairly easily.

The reality is that Democrats just don’t avail themselves of this power. That may be a bummer but it’s crazy not to recognize this reality. We’re worried about new Justices that are more conservative than Scalia or Alito or Roberts?

Yes, the Democrats have jammed up some Republican appellate nominees. But even at that layer of the judicial branch they do not play the game in the same way. By and large the Reagan, Bush and Bush II administrations were able to use the appointive power to drastically change the direction of the federal judiciary. And in the two most recent cases, Roberts and Alito, they were basically able to max out on what they wanted.

The use of the filibuster has gotten so out of hand that I think it’s likely good to get rid of it, at least in its current form, just on principle. But in practice, far better to get rid of it for all confirmations and just allow President Obama to appoint his nominees and perhaps a Supreme Court nominee over the next three years (or possibly another Democratic president in the following four years) and just deal with it when the Republicans are back in power. Because let’s not fool ourselves: the filibuster power has not done anything to stop the appointment of extremely conservative nominees. It wouldn’t in the future either. So why worry about it?

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