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By AndrewHyman Posted in Fillibuster — Comments () / Email this page » / Leave a comment »

There is a school of thought that says the GOP should let the Dems keep on filibustering appeals court nominees, without forcing a stop to it. According to that school of thought, the Senate Rules should not be brought to bear against nomination filibusters until there is a Supreme Court vacancy, at which time public opposition to the filibuster may even render such GOP action in the Senate unnecessary. Senator Smith of Oregon may be thinking along these lines.

However, that is very wishful thinking. The public will not be especially outraged at a filibuster of a Supreme Court nomination, for several reasons.

First, if there is a Supreme Court vacancy for an extended period of time due to a filibuster, the Court can function perfectly well with an even number of justices, as the Court did, for example, from 1790 thru 1806. And, the President will be able to make a recess appointment in pretty short order. So, keeping the Supreme Court fully staffed is not really an issue that will resonate.

Second, filibusters ceased to be public spectacles several decades ago, when the Senate devised a way to proceed with its other business while multiple filibusters are in progress. So, the public won't get riled up that way.

Third, by the time a Supreme Court filibuster occurs, the Dems will have already established that perpetually filibustering judicial nominations is perfectly legitimate and ordinary. So, the public would yawn at any GOP outrage on that score.

Fourth, if the Dems are smart, they will not filibuster President Bush's first Supreme Court nominee, and instead will hold their fire until the second. That way, they can advertise how "reasonable" they are, and how they only use filibusters as a last resort. The public may fall for it.

Fifth, the GOP has already begun a major push to get the filibusters of appellate nominations ended. If that fails, it will be very difficult to re-energize the GOP for a similar public-relations effort when a Supreme Court nomination rolls around.

There are other considerations too. For example, as Senator Hatch recently pointed out in his speech on the Senate floor, Democratic assertions that the full Senate can "reject" a nomination without a majority vote cannot be reconciled with various parts of Senate Rule 31. That Rule has not gotten much attention compared to the more famous Senate Rule 22, but as more people study Rule 31, it's becoming increasingly clear that the minority can't legitimately use endless filibusters to reject nominations; they can only use nomination filibusters to temporarily prolong debate. This Rule 31 argument would be surrendered if the legitimacy of endless appellate court filibusters is conceded for the sake of awaiting a Supreme Court nomination.

Also, at the beginning of this session of Congress, Senator Frist said that he did not "acquiesce" to the filibuster rules for judicial nominations. But, he will be forced to acquiesce if the GOP decides to allow the same old filibusters of appellate court nominees.

Even if it would be possible to shame the minority into withdrawing a filibuster of a Supreme Court nomination, still the minority could achieve similar results by filibustering appeals court nominees, because most Supreme Court nominees are drawn from the appellate courts.