Observers agree that last week's filibuster reform was a big deal, but nobody knows yet in which way it is going to be big. Speculation abounda - a good example is Judge Wilkinson's argument that collegial interaction in the courts will suffer as future judges do not have to gain bipartisan approval (his column, by the way, includes a beautiful invocation of collegiality in the courts, which all should read).
I am skeptical of this conclusion, for a number of reasons. While the filibuster has been abolished for all practical purposes, there are other mechanisms for minority party involvement and obstruction. As a result, presidents still have incentives to nominate judges that gain at least some bipartisan approval.
First, the Senate's rule change is not a complete demise of the filibuster – it merely reduces the number of votes needed to invoke cloture. As a result, the majority party can now invoke cloture whenever almost all of its members support a nomination. It does not need Republican votes to do so. But according to Senate rules, a successful cloture vote does not necessary lead to an immediate vote on the nomination: it can still be followed by up to 30 hours of debate. In other words, the filibuster has been turned from a block to a delay that can still be costly to the majority's political agenda. If the president can reduce Senate debate to under 30 hours by appointing judges that accommodate minority party concerns, he is likely to do so, at least in many instances.
Second, the "end" of the filibuster for presidential nominations is not the end of the blue slip process, as several commentators noted in recent days (see here, here, or here). When the president nominates a lower-court judge, the chair of the Senate Judiciary committee sends blue forms to the two senators of the nominee's state. If the two home-state senators do not return the blue forms, or return them with negative comments, the Senate judiciary chair traditionally blocks hearings on the nomination, particularly if the objecting senator is from the president's party. Judiciary chairs have differed on whether they let blue slips from opposition senators block nominations; the current Judiciary chair, Patrick Leahy (Vt), has vowed to honor Republican blue slips and requires positive blue slips from both home-state senators before he proceeds with hearings on the nominations.
This begs the question why Senate Democrats, now that they got rid of the filibuster, wouldn't get rid of the blue slip process as well. I think the answer lies in who controls the blue slip process, compared to the filibuster. The cloture vote, which is the tool to end a filibuster, is controlled by the Senate as a whole – 16 senators have to request cloture, and the president pro tempore then holds a cloture vote. The blue slip process, on the other hand, is in the hands of the Judiciary Committee chair. And the Judiciary chair may have institutional incentives beyond those of the majority party leadership, or even the average majority party member. Leahy may find that he can do his job much more effectively if he has a minimum level of goodwill from the Republican members of his committee, with whom he interacts more closely than with other Senate Republicans. As a result, it is at least thinkable that Leahy will continue to honor negative (or missing) blue slips from Republican home-state senators, particularly if the objections raised by those senators are reasonable.
So I think that it is quite likely that judicial appointments will be less partisan than some of the doom sayers expect, and they will not be more partisan than previously appointed judges: The appointing president's and the home-state senators' ideologies have been pretty good predictors of how federal judges will decide in cases with politically definable outcomes &ndsh even before the filibuster change.
