As I argued on Thursday, the case for Republicans enacting the SAVE Act (or SAVE America Act) without 60 votes in the Senate ignores the substantial downsides of clearing a path for Democrats to do the same thing to enact HR 1 and many of their other priorities that were bottled up in 2021–22 and 2011–14 for the sole reason that they could not get 60 votes. Yet, we still see House Republicans pushing to “go to war with the Senate GOP” over its adherence to the 60-vote threshold. My piece kicked up a fair amount of furious denunciation from voices such as Sean Davis and Rachel Bovard of the Federalist, who ended up retreating from openly arguing that their preferred “talking filibuster” approach would actually yield passage of the bill without 60 votes. As Bovard put it:

A talking filibuster forces a public political process which, in turn, forces negotiation. Ideally, at the end, you get a bipartisan product which can achieve cloture — an outcome only possible if you force a talking filibuster first. McLaughlin’s entire “gotcha” (a bill can pass at 51!) is procedurally illiterate (all bills pass at 51) but also intentionally leaves out that a talking filibuster does not automatically result in that.

A talking filibuster forces a public political process which, in turn, forces negotiation. Ideally, at the end, you get a bipartisan product which can achieve cloture — an outcome only possible if you force a talking filibuster first. McLaughlin’s entire “gotcha” (a bill can pass at 51!) is procedurally illiterate (all bills pass at 51) but also intentionally leaves out that a talking filibuster does not automatically result in that.

Of course, threats only work if they are credible, so Bovard omits what exactly it is that is being threatened if you don’t get a bipartisan product. But then she takes a different turn:

“We don’t want to use the rules and work for it” is why McLaughlin and, frankly, a lot of people now opposing the talking filibuster SUPPORTED and DEMANDED that the Senate nuke the judicial filibuster. I’m personally of the mind that if you advocated to nuke the judicial filibuster, you really have no standing in a debate about how best to preserve the legislative filibuster. You’re part of the reason it’s under threat to begin with.

“We don’t want to use the rules and work for it” is why McLaughlin and, frankly, a lot of people now opposing the talking filibuster SUPPORTED and DEMANDED that the Senate nuke the judicial filibuster. I’m personally of the mind that if you advocated to nuke the judicial filibuster, you really have no standing in a debate about how best to preserve the legislative filibuster. You’re part of the reason it’s under threat to begin with.

This smacks of any-weapon-to-hand-ism, but I’ll spare you how accurately Bovard has characterized my position on the filibuster over the past quarter century, because I very much doubt that a lot of senators will turn their votes on that. There are a number of very important distinctions between the nomination filibuster (for judicial and executive-branch nominees) and the legislative filibuster.

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First, and of crucial importance to this argument it was Democrats, not Republicans, who broke the judicial filibuster in November 2013, when Harry Reid changed Senate rules to allow Barack Obama’s judicial picks to be confirmed to appellate courts without 60 votes. Neither I nor Mitch McConnell nor most anybody else on the Republican and conservative side was demanding that Reid do this. McConnell warned, instead, that Reid would live to regret it — as he did, when McConnell dismantled what was left in the rubble in 2017 to get Neil Gorsuch onto the Supreme Court.

A key prop of my argument is that Democrats want the legislative filibuster gone but must pay political costs to abolish or evade it, so Republicans shouldn’t make their lives easier. Why do them a favor? Republicans didn’t do so then. The GOP stepped back from the brink in 2005 from invoking the “nuclear option” (Trent Lott’s phrase) and cut deals with filibustering Democrats led by Joe Biden and Chuck Schumer rather than confirm all the judges who had majority support. Reid had to do the heavy lifting himself — and the following November, Democrats lost nine seats in the Senate, a blow from which they have yet to recover their prior 54-seat majority. Five incumbents went down to defeat (a sixth dropped out of his race), and four others retired. In the long run, the end of the judicial filibuster got Democrats a small short-term gain on the bench followed by huge losses as Republicans built the Supreme Court majority that overturned Roe v. Wade. Democrats have been grasping at straws for procedural tricks and bogus precedents ever since. How did that work out for Reid?

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Second, let’s be blunt: The legislative filibuster is good for conservatives, who traditionally are a lot less interested than their opponents in enacting big, “comprehensive” national legislation. The judicial filibuster was the opposite: It was far more effective in keeping unbendingly originalist jurists off the bench than progressives who could present at hearings as “moderate” because they did not, in fact, have any judicial principles. In Justice Antonin Scalia’s phrase, “What is a ‘moderate’ interpretation of the text? Halfway between what it really means and what you’d like it to mean?”

Third, moving from mere outcomes to philosophy, there is a fundamental systemic difference. The legislative filibuster is pro-federalism: When you can’t muster the votes of senators from two-thirds of the states, you don’t get anything passed — and on most issues in American democracy, if nothing gets passed in Washington, power devolves on the states. That can be immensely frustrating, but it’s how the system was designed to work. But one thing states can’t do is staff the federal government. If filibusters prevent judges and executive branch officials from being confirmed, the federal government can’t do jobs it is already doing, and states can’t step in.

Fourth, the judicial filibuster is far less historically grounded than the filibuster of legislation. While the Senate has used a variety of procedures to block Supreme Court nominees, many of those were the work of a majority. Only one Supreme Court nominee has actually been successfully filibustered, in 1968, and that was bipartisan. The first party-line filibuster of judges was in 2003. For most of American history, judges weren’t filibustered — but legislation was.

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