In addition to my NRO essay on why reinstating the judicial filibuster is a terrible idea, I’ve addressed Senator Lindsey Graham’s bad arguments. And I’m still waiting for reinstatement proponents to offer an answer to these questions of mine:
What possible reason is there to think that Democrats, when they regain control of the Senate, wouldn’t abolish the judicial filibuster as soon as there is a Democratic president? And if you don’t have a compelling answer to that, why are you supporting a change that would mean that when Democrats control the Senate, liberal nominees would need only a simple majority to get confirmed, but when Republicans control the Senate, conservative nominees would have to pass the much higher threshold of 60 votes?
Remarkably, some proponents seem to think that their desire for an entrenched and durable judicial filibuster somehow makes it sensible for them to support a step that wouldn’t plausibly lead to entrenchment of a durable judicial filibuster and that would inflict severe damage on conservative judicial nominees.
One other bad argument I’ve heard is that conservatives—as distinguished from Republicans—will always be a minority, so it’s supposedly in the interests of conservatives to bolster the rights of the minority.
This argument can’t survive scrutiny.
Most importantly, even if conservatives will always be a minority, a Republican majority can generally be counted on to confirm conservative judicial nominations made by a Republican president. Reinstating the judicial filibuster would instead transfer massive power to liberal senators to block those nominations. As a result, many of the best conservative candidates wouldn’t even offer themselves for nomination.
By contrast, when a Democrat is president and the Republicans have a majority, the conservative power to filibuster nominees would mean little. I’ve already explained (in point 2 here) why the filibuster in that context would generally be unnecessary and could be destructive. I’ll add that most supposed Democratic “moderates”—the kind whom conservatives would be unlikely to filibuster—are really just stealth liberals, so that’s further reason to doubt that a filibuster would achieve anything. (Besides, does anyone really think that there are 41 steadfast, rock-ribbed conservatives in the Senate?)
And when a Democrat is president and the Republicans are in the minority, Senate Democrats will simply re-abolish the filibuster, so conservative senators would have no influence in that scenario.