TCS Daily

Republicans Shouldn't Fear Eliminating Judicial Filibusters

By James D. Miller - December 16, 2004 12:00 AM

Senate Republicans shouldn't tolerate Democratic filibusters of judicial nominations. Democratic threats to retaliate if they lose filibuster rights lack credibility.

The President will likely appoint several Supreme Court Justices in his next term. Because Republicans have 55 Senate seats, Bush could probably get a majority of senators to vote for an ideologically conservative Supreme Court nominee. The Democrats, however, would undoubtedly try to filibuster such a candidate, and to overcome the filibuster the President would need the votes of 60 senators. Consequently, if the Democrats retain the right to filibuster, Bush will probably not be able to get an openly conservative Justice confirmed.

Senate Republicans, however, are contemplating changing Senate rules to eliminate the right of Democrats to filibuster judicial nominations. The Democrats are trying to use threats to preserve their filibuster rights.

If Republicans curtail Democratic filibusters, the Democrats may do the same to Republicans the next time the Democrats control both the Senate and the Presidency. But even if Republicans fully preserve the Democrats' filibuster rights, the Democrats might still eliminate judicial filibusters when they next run the Senate and White House. Short of amending the Constitution, there's no credible way for the Democrats to pledge not to abolish Republican filibuster rights when the Democrats next take power.

Furthermore, the greater the future benefits to Democrats of curtailing Republican filibusters the more likely they will do so regardless of how Republicans behave today. For example, imagine that the Democrats keep the right to filibuster but somehow enough stealth conservatives get appointed to the Supreme Court to overturn Roe vs. Wade and eliminate all government affirmative action programs. Now imagine that Hillary Clinton wins the Presidency and the Democrats retake the Senate. Republicans, however, pledge to filibuster any judicial nominee who would vote to reinstate either Roe or affirmative action. Do you think that President Hillary would (a) respect Senate tradition and allow Republicans to filibuster even if it meant she could never appoint a liberal to the Supreme Court or (b) do whatever she could to reduce the power of Republicans? If you voted for (b) then you should think that there's not much point in Republicans' playing nice to the Democrats today because you believe that even if they do Democrats will still play hardball the next time they gain power.

Of course, it could easily take more than twenty years for the Democrats to control both the White House and Senate. Democrats' threats to retaliate when they come to power, therefore, lack credibility and meaning in part because no one can know what the political world will be like twenty years hence.

Democrats, however, have promised to punish Republicans immediately if Republicans are bold enough to eliminate judicial filibusters, but these threats also lack credibility. Imagine that Democrats have threatened to take action X if they lose their filibuster rights. Action X, for example, could represent a Senate slowdown strategy. For action X to credibly deter the Republicans from changing Senate rules, the Republicans would necessarily have to believe that the Democrats would implement action X if, but only if, the Republicans curtail filibusters.

If action X would prevent Republicans from implementing Social Security reform and other elements of the Bush agenda then Democrats would indeed take action X if they lost their filibuster rights. But they would also take action X if they didn't lose these rights. The lack of bipartisanship is so strong that Senate Democrats will likely do whatever they can politically get away with to harm Republicans. Consequently, the Democrats' threat to impose extra harm if they lose filibuster rights is non-credible because they will probably fight the Republicans to the maximum of their political ability regardless of how Republicans treat them.

James D. Miller writes The Game Theorist column for TCS and is the author of Game Theory at Work.


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