Democrats Should Not Bring Back the SCOTUS Filibuster

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For some reason, Edward Markey wants to bring back the SCOTUS filibuster to help Republicans obstruct a Democratic Justice. Photo: Ryan McBride/AFP/Getty Images

Sometimes when you get to the end of a tough political fight — particularly one you lose — it is hard to change the talking points to reflect new realities. That would be the charitable interpretation of Massachusetts Senator Edward Markey’s statement that Democrats would bring back the SCOTUS filibuster as a first order of business when they regain control of the Senate.

“We will restore the 60-vote margin. We will ensure that for the Supreme Court there is that special margin that any candidate has to reach,” he told MSNBC.
He said making Supreme Court candidates get 60 votes “is essential to ensuring that our country has a confidence in those people who are nominated, rather than just someone who passes a litmus test.”

Now aside from the many arguments on the merits for getting rid of the SCOTUS filibuster — arguments my colleagues Jonathan Chait and Eric Levitz have made eloquently — let’s consider what that would mean strategically for Democrats. If they are in control of the Senate but are confronting a Republican president (in theory, say, after 2018), then Democrats don’t need a SCOTUS filibuster so long as their majority uses its power and stays together. But more likely the circumstance will arise when Democrats control the Senate and the White House. So bringing back the SCOTUS filibuster would involve taking a legislative tool the GOP had disabled, weaponizing it again, and handing it back to the party that specializes in obstruction. Why on earth would they want to do that?

I suppose if you are conservative for the sake of being conservative, you’d favor anything that slows down business in Congress, on top of the many, many structural barriers to effective lawmaking that are scattered throughout the system. But Democratic senators are not supposed to be temperamentally opposed to government functioning. So again: Maybe Markey misspoke, or picked up yesterday’s speech today.

Democrats Should Never Bring Back the SCOTUS Filibuster