ESTRADA AND TRADITIONS

See Sam Heldman's posts on Senate traditions and the Estrada debate here and here. Sam underestimates the protean nature of the Republican argument here: first it was that filibustering judicial nominees as such was unconstitutional and untraditional (because it imposes an extra supermajority and had never been done before), then it was that a partisan filibuster was untraditional, then it was that a filibuster of an appeals court nominee was untraditional. Now, the final (unstated) argument seems to be that a successful partisan filibuster of an appeals court nominee is what's untraditional and dangerous. I doubt that Republicans really care about what's really traditional or not.

One shouldn't underestimates the force of and purpose of Republican rhetoric here. The Republicans are employing one of the weapons that they always employ against Democrats: the patriotic high ground of support for good tradition (as distinguished from the equally valid patriotic high ground against bad tradition, which the Dems like to invoke). The ability to invoke this argument is important for Republican claims here but not essential: other lines of Rep attack include the "going against the will of the majority" argument (used or implied in all the claims that Dems are a minority party in the Senate), and what I'll call the "Democrats want crappy judges" argument (used to justify current Republican judicial choices as inherently more constitutional than Dem choices).

Attacking any of these arguments individually will never be enough to make a case for a new nominations process, or at least a case that would be persuasive to Republicans. The [Republican] partisan gains to be had for attacking on all fronts are just too great. In fact, Dem obstructionism here will probably produce partisan gains for Republicans, since Presidents are usually better at framing debates than the many-headed Congress.

The best way to change the nominations process would be to start pushing for constitutional changes such as ditching life tenure for judges. The transaction costs here are high. But only something radical like that will actually circumvent the partisan incentives here, it seems to me.