So much has now been written about the filibuster that one might think there is nothing more to say. Wrong! I do have some observations, about the Senate leading up to this change, and about the Senate going forward, that I hope will plow new ground—or at least use different furrows.
First off, I view the actions taken last week with some sorrow. I am not exultant that the change took place the way it did. I have long been an advocate not of removal of the filibuster, but of filibuster reform; my main idea has been to shift the threshold from 60 votes needed to stop debate to 40 votes needed to continue it—putting the onus where it belongs, on the minority, with an even more relaxed threshold for executive nominations.
But I would much rather have seen this impasse resolved the way it has been in the past, with a bipartisan agreement to break the logjam and approve most of the president's nominees, along with a return to the 2005 standard that filibusters of nominations should be reserved for "extraordinary circumstances." When it became clear that there was no chance of such a deal, I supported Harry Reid's actions.
It is true that both parties have used, and abused, filibusters of judicial nominees in the past. A sharp increase in the use of filibusters against appeals court judges—including what I decried then as the foolish filibuster against the highly qualified Miguel Estrada—led then-Majority Leader Bill Frist to propose what his predecessor Trent Lott called the nuclear option in 2005. I strongly opposed it then, and breathed a sigh of relief when the "Gang of 14"—seven senators from each side of the aisle—reached a compromise that ended up confirming such extreme judges as Janice Rogers Brown and Priscilla Owen and returning the Senate to the standard of limiting filibusters to extraordinary circumstances.