The Right Coast

May 12, 2005
Filibustering Judges
By Mike Rappaport

At the Conspiracy, Orin Kerr asks whether anyone has written about "the structural and systematic effect of filibustering judicial nominees." It just so happens that John McGinnis and I have looked at this question in a recent article. As readers of this blog will know, our conclusion is that the ideal rule for confirming judges "would be a supermajority rule for Supreme Court nominees, but only a majority rule for circuit and district court nominees."

The Supreme Court has substantial power to entrench new norms under the Constitution. Many of the same reasons that support requiring a supermajority to enact new norms through a constitutional amendment also support requiring a supermajority before confirming officials who will have the power to entrench new norms. In particular, a supermajority rule would have the effect in this area of making it harder to confirm justices whose views significantly depart from the political center.

By contrast, a supermajority rule is needed much less for circuit court judges, because they lack the power to establish new norms. Moreover, a supermajority rule would tend to reduce the diversity of views among circuit court judges -- a diversity which contributes to the quality of judicial decisionmaking.

The supermajority rule for Supreme Court nominees, however, should only be adopted through a bipartisan agreement between the political parties. (For example, it could be applied prospectively beginning in January 2009). If one party applied it unilaterally, the rule would be likely to lead to high decisionmaking costs -- that is long delays in confirming nominees -- because the President would be reluctant to compromise with the Senate minority and instead would attempt to fight what he would regard as an improper decisionmaking process.