Senators from both sides of the aisle are lamenting the death of the filibuster for Supreme Court nominations, arguing that its demise will further exacerbate partisan dysfunction and congressional gridlock. But the end of the filibuster is a symptom of the death spiral of the Senate into permanent polarization, not its cause.
The history of the filibuster, as recounted by Josh Chafetz, suggests that it was a historical accident and only became a tool for permanent minority obstruction relatively recently. Article I, Section 5 of the Constitution gives each house of Congress the authority to set the rules for its own proceedings. And, in the early years of the Republic, senators could end debate by calling for the “previous question,” which required a simple majority vote. Furthermore, Thomas Jefferson, described by Chafetz as “the great parliamentarian of the early Republic,” said, “No one is to speak impertinently or beside the question, superfluously or tediously,” and, “if repeated calls do not produce order, the Speaker may call by his name any member obstinately persisting in irregularity, whereupon the house may require the member to withdraw.” (Chafetz has debated the history and constitutionality of the filibuster with Richard Arenberg, who offers a different perspective.)
The Senate abolished the previous question motion in 1806, at the urging of Aaron Burr. But this wasn’t because the Senate sought to enshrine a principle of unlimited debate. Instead, Burr thought that the rule wasn’t needed because it was rarely used. As political scientist Sarah Binder explained in testimony before the Senate in 2010, “The history of extended debate in the Senate belies the received wisdom that the filibuster was an original, constitutional feature of the Senate. The filibuster is more accurately viewed as the unanticipated consequence of an early change to Senate rules.”