The contemporary filibuster is a polite affair. Charles Schumer does not talk through the night, bleary eyed and exhausted. Why not? Couldn’t the filibuster be broken if the Republicans forced the Democrats to go 24/7? No. Because the 24/7 option actually gives an advantage to the minority. Why? In order to force a 24/7 filibuster, the majority must maintain a quorum at all times, but the minority need only have one Senator present to maintain the filibuster. So 24/7 both exhausts and distracts the majority, while allowing the minority the opportunity to rest and carry on their ordinary business. [Emphasis added.] No modern filibuster has been broken by the 24/7 option. For more on this, see my post entitled Update on Filibusters.
Putting the onus on the filibustering party to sustain the filibuster would be a reasonable, fair reform to the rule, much more so than other proposed reforms (adjusting the number of senators required or reducing the scope of what floor actions can be filibustered). And Larry is not very optimistic about what happens now:
But is it too late? Have we moved so far down the spiral [of] politicization that it is impossible to turn back? At this stage in the game, it seems unlikely that Democrats would trust a Republican nominee who presented herself as committeed to the rule of law. And given the Republican perception that the Democrats have unfairly escalated the confirmation wars, it seems unlikely that Republicans will forgo the opportunity to attempt to find confirmable candidates for judicial office who are committed to the political agenda of the right. Charles Schumer rang the bell and its peel has been heard far and wide. Both sides now seem committed to a judicial selection process that concieves of the federal judiciary as the third political branch. Not the least dangersous branch, but the most dangerous branch. The branch that carries out a political agenda with the security of life tenure and the power of final decision about Constitutional questions. Can that bell be unrung? I wish that I could say “yes” with confidence, but alas, I cannot.
Is the politicized judiciary anything new? Scholars have debated that question for the past thirty years, with very mixed results. But certainly the willingness of both parties to use the courts as a vehicle for their partisan agendas has increased in the past two decades. And, ultimately, the electorate (or perhaps a few senators who are more concerned about the institution than their own careers, a dying breed by any measure) will have to settle the argument by giving one side the sixty senators it needs to either fix or abolish the filibuster, as the current situation is likely to get far worse before it gets better.