If you assume, as Alex Pareene does (and I think he is justified), that the Republicans would have eliminated the filibuster for judicial nominees even if the Democrats didn’t do it, then there really was little to no reason for the Democrats to show restraint. However, that doesn’t mean that there isn’t a reason to lament the change.
One thing that the filibuster accomplished, however imperfectly, is that it created a bias toward nominating moderate judges. The need to attract at least a small handful of support from senators across the aisle meant that bomb-throwers rarely were even considered for the federal bench. Of course, this created a perverse incentive for ambitious lawyers and judges to hide their true beliefs, lest their record block their career path.
Personally, I’d love to have openly progressive judges serving on the federal bench, but I’d trade that not to have openly conservative judges on the bench. On the whole, I’d like to see a less politicized judiciary, as I see partisan rulings as undermining people’s faith in impartial justice.
In practice, this is pretty unrealistic, and it became completely unworkable when the Republicans stopped objecting to judges for cause and just started opposing them all for no reason whatsoever.
People misunderstand the filibuster. It’s really just a rule for dealing with situations where unanimous consent cannot be achieved. We’ve gotten to the point where we can’t get unanimous consent from the Republicans for anything except maybe naming post offices.
A better way to urge moderation on the bench would be to change the rules so that a judicial nominee cannot get a vote on the Senate floor unless a majority of the Judiciary Committee approves them. Right now, a nominee can receive a confirmation vote even if the they have not been approved by the Judiciary Committee. The change would mean that a nominee would need the unanimous, or near-unanimous support of the president’s party in order to be confirmed. A nominee that was controversial enough, would be unable to get that level of support.
In any case, to reiterate, the filibuster is just a rule for dealing with a lack of unanimous consent. If the objection is budget-related, you can’t filibuster. If the objection relates to legislation or a Supreme Court nominee, you need 60 votes to overcome it. If the objection relates to a lower-level judicial nominee or an Executive Branch appointee, then it takes 50+1 votes to overcome it.
The number required in each case is somewhat arbitrary, although a simple-majority is the norm in all decision-making bodies. If there is a compelling reason to empower the minority, as with proposed amendments to the Constitution, then there still is a point at which that courtesy has been abused and the original wisdom of granting the concession succumbs to a different wisdom grounded in the need to get things done.
The only perfect solution would be for the legislature to resolve the country’s most contentious issues by amending the Constitution and putting them beyond the reach of either or the judiciary or the Congress. Until then, we’ll have both parties trying to legislate from the bench, and the Senate will continue its brawl over appointments. At least, now, with the changes in the rules, judges can be confirmed.
