In my post yesterday, I put forward a "process" argument for keeping the filibuster. This morning, I find Brian Leiter arguing for keeping the filibuster on "substantive" grounds--that it is of vital importance that the filibuster option be preserved given the current state of the Republican party and the disaster that is the Bush administration.
In fact, the process/procedural argument and the substantive argument dovetail. The need for a super-majority for appointment to the federal bench is demonstrated by the present situation (an extreme right-wing administration putting forward nominees very far out of the mainstream with the support of an extreme right-wing party leadership in the Senate).
Does history help in this regard? Yes and no. While it is apparently the case that judicial filibusters have been rare until recently and do not date back to the early days of the Republic, it is also the case that the dynamics of party membership, the workings of the court, and the importance of the judiciary are all different now (in the 2000s) than they were in the 1880s or even the 1970s. The fact that Southern Democrats used a Progressive-era reform to block Civil Rights legislation does not mean that the Progressives were not on the right track.