The Volokh Conspiracy - Merits of the Filibuster?:

If you read the commentary these days about filibustering judicial nominees, you have to conclude either that a) filibustering is essential to the Rule of Law, b) filibustering will destroy the Rule of Law, or c) arguments (a) and (b) are just the arguments du jour of those who either like or dislike Bush's nominees and need to fill up op-ed space.

I'm wondering, has anyone written anything good about the structural and systematic effect of filibustering judicial nominees? Putting aside the question of this president and these nominees, it seems to me that having a de facto 60-vote requirement for confirming appellate judges is an interesting idea. I don't know how it would work or what the scope of it would be, but I'd be interested in reading something thoughtful about its pros and cons. If anyone knows of such a discussion, please provide a citation to it (with the URL or a link if it's online) in the comment section.

UPDATE: A reader asks why I think a 60-vote requirement might be an interesting idea. I'm an outsider to this area, but I imagine the pro-con debate might go something like this:

Pro: A 60-vote requirement is a good idea because we don't want extremist judges. We should have judges with bipartisan support, and a 60-vote requirement ensures that.
Con: You're being naive. You're assuming that the minority party will act in good faith, only blocking judges that they think are "extremist." In reality, minority parties will just block judges they don't like.
Pro: How can the minority party only block judges they don't like? They won't like any of the opposing party's nominees. They'll have to pick and choose which judges to filibuster, and they'll pick the most extreme nominees.
Con: But that will only create an incentive for the President to nominate more "extreme" nominees, whatever that means. If the minority can only stop a few, the President will name a few people knowing that they won't get confirmed.
Pro: Maybe, but political pressures might just prevent that from happening.

Something like that, anyway.

	[Orin Kerr, May 11, 2005 at 2:39pm] Trackbacks Merits of the Filibuster?: If you read the commentary these days about filibustering judicial nominees, you have to conclude either that a) filibustering is essential to the Rule of Law, b) filibustering will destroy the Rule of Law, or c) arguments (a) and (b) are just the arguments du jour of those who either like or dislike Bush's nominees and need to fill up op-ed space. I'm wondering, has anyone written anything good about the structural and systematic effect of filibustering judicial nominees? Putting aside the question of this president and these nominees, it seems to me that having a de facto 60-vote requirement for confirming appellate judges is an interesting idea. I don't know how it would work or what the scope of it would be, but I'd be interested in reading something thoughtful about its pros and cons. If anyone knows of such a discussion, please provide a citation to it (with the URL or a link if it's online) in the comment section. UPDATE: A reader asks why I think a 60-vote requirement might be an interesting idea. I'm an outsider to this area, but I imagine the pro-con debate might go something like this: Pro: A 60-vote requirement is a good idea because we don't want extremist judges. We should have judges with bipartisan support, and a 60-vote requirement ensures that. Con: You're being naive. You're assuming that the minority party will act in good faith, only blocking judges that they think are "extremist." In reality, minority parties will just block judges they don't like. Pro: How can the minority party only block judges they don't like? They won't like any of the opposing party's nominees. They'll have to pick and choose which judges to filibuster, and they'll pick the most extreme nominees. Con: But that will only create an incentive for the President to nominate more "extreme" nominees, whatever that means. If the minority can only stop a few, the President will name a few people knowing that they won't get confirmed. Pro: Maybe, but political pressures might just prevent that from happening. Something like that, anyway.