Some defenders of the judicial filibuster suggest this is simple payback for Republican mistreatment of Clinton nominees from 1995-2000. Others argue Senate Democrats have no choice because other, more traditional means, of blocking nominees (e.g. blue slips) have been curtailed. Implicit in some of these arguments is the view that blocking a judge is blocking a judge, no matter how it is done. Matthew Yglesias, for instance, argues that “If we’re talking about blocking judges, we should be talking about all the ways (blue slips, failure to schedule hearings, etc.) that nominees have been blocked from getting floor votes.”
While I agree with the principle that all nominees should get hearings and a floor vote within a reasonable period of time – and that it was wrong for both Republicans and Democrats to block action on Clinton, Bush, and Reagan nominees in years past – I am not convinced that all forms of delay are equivalent, or that principled opposition to one suggests principled opposition to them all. It seems to me that there are significant differences between the majority’s control of the Senate agenda, the traditional use of blue slips by home state Senators, and a minority filibuster, and that it is reasonable to oppose the obstruction or delay of nominees through some of these methods but not others.
Majority control of the Senate entails certain prerogatives. Among them are the control of committees and the Senate’s agenda. The party in control of the Senate decides what business to conduct and when to conduct it. As a general matter, it is not “obstruction” when the Senate majority refuses to take up issues supported by the President, as the Senate is entitled to have its own priorities. Thus, one should expect that a Senate majority will consider nominees it likes [...]