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:: A constitutional law blog by Scalia/Thomas fan David M. Wagner, M.A., J.D., Research Fellow, National Legal Foundation, and Teacher, Veritas Preparatory Academy. Opinions expressed here are those of the author and do not reflect those of the NLF or Veritas. :: bloghome | E-mail me ::

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    :: Sunday, June 20, 2010 ::
    Filibuster -- NO

    No, Senate Minority Leader Mitch McConnell is not hinting at a filibuster of Elana Kaga. He is merely not closing the door on it. But he should close that door.

    It's all very well -- in fact, it's brilliant -- to point out, as he does, that currently active Democrats, including Obama, have voted to require a 60-vote threshold for Supreme Court nominations. But if Republicans support one now, it will become a hard and fast rule. And once that happens, you can write off forever any future Scalias and Thomases, or even Robertses and Alitos.

    In this Senate, Kagan could clear even a 60-vote hurdle. (C'mon, do you think Scott Brown, who voted for the financial reg bill, would vote against her? And what about the Maine contingent?) But when a Republican is in the White House -- unless he was swept in by a GOP tsunami that produces a more Republican Senate than either 1980 or 1994 -- another Souter will be the best he can do. And if he/she does have such a highly Republican Senate, liberal Justices will just wait out the congressional term before resigning. Constitutional conservatives would be forced to rely on coronary events or tragically-timed falling pianos to bring about change.

    No Supreme Court filibusters. They're stupid. Republicans should renounce them, forever, now.

    :: David M. Wagner 6:16 PM [+] ::

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