In many ways, the filibuster for Supreme Court nominees died on November 21, 2013, when Harry Reid used the nuclear option on executive and judicial nominations other than the Supreme Court. A distinction between a 60-vote threshold for the Supreme Court and a 51-vote threshold for every other nominee was barely conceptually tenable — and, as today’s events have shown, it was even less politically tenable. Perhaps the filibuster for nominations suffered its first major blow in 2003, when Democrats began mounting partisan filibusters of Bush judicial nominees, or 2005, when Republicans contemplated detonating the “nuclear option” themselves. Or maybe the slow march to the death of the nominations filibuster began in 1987, when the Bork nomination inaugurated an era of scorched-earth nomination politics (which would culminate in partisan filibusters of nominees and partisan efforts to nuke the filibuster).
A sustained partisan filibuster of a Supreme Court nominee is an extraordinary and unprecedented circumstance, so perhaps Republicans in the Senate believed that they had to take extraordinary action in response. But the forces that led to this situation have become quite ordinary in Washington. Hyperpartisanship has become an enabler of institutional decay, as politicians put the immediate whims of their respective tribe over long-term questions of civic norms and good governance. Full-throated partisan warfare might get the clicks and the fundraising dollars, but, like the bread and circuses of decadent Rome, it often camouflages civic decline. The combination of histrionic factional battles with economic stagnation and institutional failure was central to the rise of Donald Trump. After Trump’s election, many institutional actors seem inclined to double down on those corrosive political tendencies.
The rabid, give-no-quarter politics that led to the end of the filibuster for nominations could lead over time to the end of the filibuster for legislation. Ending the filibuster for legislation would allow the majority party to implement its policy vision much faster and with much less need for compromise. The example of Democrats in 2009 should offer some corrective to this idea, though. They had massive political power in Congress, but what they did with this power caused them to be rebuked at the ballot box. A more likely way to have a broad and long-lasting legislative legacy is to keep getting elected, which means passing measures that are popular and effective while also in accord with deeper principles.
Of course, ending the legislative filibuster would probably significantly weaken the power of individual senators, and it would also lessen the ability of the Senate to check partisan passions. However, the siren song of factional loyalty might convince senators to surrender their constitutional interests in order to be good “team players”; look at how many senators were willing to allow the president to arrogate to himself legislative powers in recent years. Maybe later observers will look back and observe that the legislative filibuster really died on April 6, 2017. The legislative filibuster doesn’t have to die, but it very well may if norms do not change, institutions are not reformed, or politicians do not recover from the current episode of partisan myopia.