Although conservatives now attack the filibuster as anti-democratic, liberals say it may be the last mechanism requiring the Senate to represent the wishes of the entire country, rather than the base of the majority party.Now, how does this concept of the true majority really work? We know that the states each get only two Senators, and some very large states -- notably New York and California -- have two Democratic Senators. But there are still huge numbers of Republicans in those states who aren't going to feel that the Democratic Senators are representing the interests they care about in judicial appointments. If the state lines were redrawn to make 100 units of equal population and each of these new units elected one Senator, what would the party split be?
"A simple majority in the current Senate doesn't represent a majority of the United States, but Democrats are coming from states which represent a majority of the American population," [liberal legal scholar, Michael] Gerhardt said. "The filibuster helps to counterbalance the fact that a majority of the Senate right now may not speak for most of the country."
The filibuster is a crude mechanism for getting closer to the rule of the majority. Senators from really small states get to use it too, even states that are nearly evenly balanced between the two parties. So a very tiny fraction of American preference could prevail using the filibuster.
So what is the best way to come as close as possible to representing what the majority of Americans wants in picking the individuals to fill the judicial slots?
The best answer is to allow the President to have his choice. The effort of electing the President engages the entire country. He's the one person who represents us all, and the Electoral College process gives recognition to the individual states in a way that gives far more regard to the people of the large states than the Senate does. This is not to say the Senate ought to do nothing with it's advise-and-consent role. It ought to at least ensure that the President doesn't stock the courts with unqualified cronies. But if the President selects worthy jurists, there is a limit to how much a minority of Senators should be able to accomplish.