Shannen: The reason I’m not for a formal restriction on judicial filibusters is not that I’m pessimistic about what the Democrats will do in retaliation. It’s that I’m optimistic about the politics of a Supreme Court nomination. I think, first, that Bush is likely to nominate a conservative rather than to pre-empt the liberal filibusterers by nominating a squish. I think, second, that a Democratic attempt to filibuster a nominee to the Supreme Court will go down very badly with the public. Democrats have already paid a price for filibustering appeals-court nominees, and I suspect that they will pay a higher one when it comes to the Supreme Court (since more people will be paying attention). Finally, I think we’ll be in a better position to appoint conservative judges in the future if the Democratic filibuster fails in a high-profile fight and is seen to inflict damage on the party than if Republicans make a procedural change that prevents a Democratic filibuster from failing and being seen to fail.
If you’re less optimistic than me about the likely outcome of a Supreme Court filibuster (or its threat), then of course you’ll reach a different conclusion. You’ll also reach a different conclusion if you think there’s a constitutional obligation to end judicial filibusters. I don’t see such an obligation, but a lot of smart and principled conservatives, including the great Mark R. Levin, do.