As Kent has pointed out, one of the advantages of a Republican majority in the Senate is that it is likely to constrain the President in appointing judges who value "compassion" (or their version of compassion) over law.
In the old Senate, Harry Reid changed the rules governing how filibusters would be conducted on the nominations of court of appeals judges. Instead of taking 60 votes to end debate, as it had for years, Sen. Reid and his party re-rigged the rules so that it took only 51. When Democrats had a 54-seat majority, this enabled them to get Obama's nominees to the floor at will.
Now that Republicans will have their own 54-seat majority, the question has arisen whether they should bring back the old rule requiring 60 votes to end debate, or keep the rule as Reid changed it.
Very bright people have different answers. My old boss and friend, former White House Counsel Boyden Gray, says in the Wall Street Journal (in a piece co-authored with Sen. Orrin Hatch) that we should keep the new rule. My friend Paul Mirengoff of the influential conservative blog Powerline thinks we should restore the old rule.
This makes a big difference. Boyden and Paul are both brilliant. My take on it follows the break.
The issue is not free from doubt, as Paul notes. I tend to agree with Boyden that we should keep the new rule.
The main argument for Boyden's stance is, in my view, the ancient and quite sensible principle that what's sauce for the goose is sauce for the gander. If a simple majority was good enough to end debate two months ago, it should be good enough two months from now.
Whether this is shrewd politics is a complicated question. It will work for Republicans in the new Congress, but in future years, there can be different permutations and combinations of Republican presidents having, or lacking, Republican Senates. Same deal with the Democrats. Control can be divided, as it will be in January. And Senate majorities can be fat or slim.
To be crass about it, this is the lay of the land: The Main Stream Media will criticize anything Republicans do that is not to Mr. Obama's immediate advantage in appointing "living Constitution" judges. See, e.g., the NYT's diametrically opposed positions over the years about the filibuster, all depending on which party held the Presidency. In addition, the Democrats are likely to feel free to make any procedural changes they want any time they want, in 2016 and beyond, just as they did in the session now ending.
That's how it is. It didn't used to be that way. Indeed, it wasn't that long ago that thoughtful people on both sides were worried about the "nuclear option" as exploding (as it were) the Senate's long tradition as a more deliberative body, and a more consensus-oriented institution than the House. But those days are gone.
Such are the main considerations that animate me in thinking the new Senate should keep the filibuster rule Sen. Reid created.
As to filibusters as a more general matter, it's hard to figure out the correct answer as a matter of principle. Ordinarily, a simple majority should have its way -- that's the whole point of democracy, right? But we know simple majorities can act in haste, even recklessness. And federal judges, once seated, sit for life.
It's a close question. I think the right answer, both for the foreseeable future of a law-oriented federal judiciary, and for Congress's self-discipline before it again acts on strictly partisan motives like those of Harry Reid, is to keep the filibuster rule he created. Did I mention sauce for the goose?
The third option is to adopt a new set of rules for the Senate, as the first order of business when the new Congress convenes, abolishing the filibuster altogether.
The existing rules say they carry over from one Congress to the next and require a supermajority to replace or amend, but IHMO one Congress cannot bind a subsequent Congress with rules any more than it can with statutes.
This method would be more principled than the Harry Reid method, which is simply to ignore the rules.