Nuclear Fallout Continues

Now that Senate Democrats have eliminated the filibuster for judicial and executive branch nominees, it will be somewhat easier to confirm potentially controversial nominees to the federal bench.  In anticipation of this shift, Ian Millhiser of Think Progress identified “5 People Who Could Be Confirmed To The Supreme Court Once The Filibuster Is Nuked,” including former OLC nominee Dawn Johnsen and Stanford Law’s Pamela Karlan. Yet the new rule cuts both ways, and will make it easier to confirm a Republican President’s nominees as well.

This week, Millhiser warned of the horrors that could result should a Republican Preisdent have the opportunity to replace Justice Ruth Bader Ginsburg on the Supreme Court. Given the end of judicial filibusters, expect to hear an increasing number of progressive legal analysts calling for Justice Ginsburg’s retirement from the Court so that President Obama may name her successor. (And Justice Breyer too.) Although Senate Democrats purported to leave the possibility of filibusters for Supreme Court nominees in place, no one believes this distinction will hold for even a moment should a cloture vote on a Supreme Court nomination fail. And without a potential filibuster, progressive groups have little hope of blocking the confirmation of a qualified conservative nominee — and without this threat there is less reason for a President to nominate a more “mainstream” or less controversial nominee. All the more reason for progressives to demand Supreme Court vacancies now.