Several news reports indicate that some Republican Senators are going to try to filibuster the confirmation of Judge David Hamilton to the U.S. Court of Appeals for the Seventh Circuit. This effort is futile and unfortunate. Even if I believed that Judge Hamilton’s record justified opposition to his confirmation (and I do not, as I believe the Senate should be relatively deferential to a President’s judicial nominees), I would oppose a filibuster. Even if Senate Republicans had the votes to block Judge Hamilton’s confirmation, I would still feel the same way.
The strongest argument in favor of a filibuster is that Republican Senators are unwilling to engage in unilateral disarmament in fights over judicial nominations. Under this reasoning, the attempted use of the filibuster would be justified as a retaliatory measure until such time as both parties could agree to forswear future reliance upon it. I have yet to read of any Republican Senator justifying an attempted filibuster on this basis, however.
Last fall, I suggested a GOP filibuster attempt might end the filibuster of judicial nominations once and for all:
While I oppose the filibuster of judicial nominees, one practical benefit of a Republican filibuster of an Obama nominee could be the end of judicial filibusters. If Republicans were able to hold their caucus together, perhaps Senate Democrats would be prompted to cut a deal promising to forego any judicial filibusters in the future. Alternatively, perhaps a GOP filibuster would prompt Senate Democrats to invoke the nuclear option, ending judicial filibusters once and for all. Indeed, I would feel better about any GOP filibuster threats if filibustering GOP senators would commit to voting to support the nuclear option if it were invoked. In this way, GOP Senators could maintain a principled opposition to the filibuster of judicial nominations without unilaterally disarming themselves against Senate Democrats (and a President) who have supported such filibusters in the past.
Alas, I suspect this is all wishful thinking, and I suspect judicial filibusters may be with us for a while.