Proving what they say about shoes and other feet, the New York Times has abandoned it’s support for the law allowing the filibuster of judicial nominees (which was used by great effect by Democrats during the Bush administration), and is calling for it to end. At the Volokh Conspiracy, Orin Kerr argues that this election year may be the perfect time to end this silly practice:
It is still early enough that neither party knows who will win the Presidency this fall, or even who will hold a Senate majority. This allows each side to put aside consideration of partisan advantage and embrace a neutral set of rules to govern future nominations to take effect in January 2013.
This is a bit of a golden opportunity to try and make the Senate rules more neutral. Both parties are in something like an Original Position, not knowing which side of the majority/minority line they will be on next year, or who the President sending judicial nominees to the floor will be. What is clear is that the judicial system can not function if nominees are held up by tiny minorities of Senators – by all means, the Senate should vigorously debate and oppose judicial nominees, but they should be forced to do so on the record and with up-or-down votes. I hated the Democrats when they filibustered Bush’s nominees, and I hate the GOP for doing the same to Obama’s – here’s hoping that they’re just afraid enough of November to do something about it now.