One thing that has not been considered yet is that the Democrats had no need to end the filibuster for SCOTUS. All they needed to do was remove it for the lesser courts and then populate it with their surrogates. This group of “respectable judges beyond repute” then becomes their pool for SCOTUS nominees. They knew they could count on Republicans not “denying” the President his choice. The truth is that a SCOTUS filibuster under this model will only ever be used against Republican nominees.
Now that the precedent is set, I do think that the Senate needs to finish the job and eliminate the filibuster for SCOTUS. It is largely irrelevant simply based on the argument above. There are too many reasons not to keep it.
- Trump will be nominating at least one and potentially three more justices. If Trump continues with Constructionist nominees as this one is sure to be, you can be certain the filibuster will eventually be eliminated. Progressives will have no choice but to try and stop an immense shift in judicial power away from their control for decades to come.
- Right now we are still in the “amnesia window” for political election cycles. Do it now rather than in a year when Trump makes his next nomination. Voters won’t hold it as relevant in the 2016 election other than those who are purely agenda driven. I.e. it won’t change outcomes.
- As I said, this will be a tool that will only ever be used against Constitutionalists.
- Political reality for a very long time to come is going to preclude selection of justices from outside the judicial branch regardless, the fact that there is no constitutional requirement.
- The media will come at you just as viciously regardless of when you do this. That is a given. At this time, it is still possible to argue and defend from principle. In a year or two, when it’s a political necessity, you won’t have that. This won’t matter to the press or the political class, but it will carry weight with the voters.
So please, Republican Senate, do this now while you can take the high road rather than the necessary road. It will work out better in the end.