There are a number of proposals kicking around at the moment. Toobin singles out what may be the most elegant: require that Senators who want to filibuster do it the old fashioned way, by standing up and talking – and talking, and talking for as long as they can hold out – the way Jimmy Stewart did it in Mr. Smith Goes to Washington. That might contribute to restoring the filibuster to its intended purpose – blocking the occasional piece of legislation that the minority party considers truly egregious. Toobin writes:
The theory behind their idea is that the requirement to stand up and filibuster would create a real deterrent to the profligate use of the tactic. It’s a modest change—filibusters would still exist—but a useful one.Though Toobin doesn’t mention it, this change also would make the misuse of the filibuster to obstruct the work of the Senate more visible – and audible – to the American people. They could watch Senate business grind to a halt as Senators filled hour after hour on C-SPAN for days at a time.
Senate leaders tend to be institutional conservatives, who worry, with some justification, that their party will be in the minority some day. But Republican obstruction has become such an obstacle to legislative progress that the risk seems worth taking.If you’d like to ask Jeffrey Toobin about this yourself, or hear more from him on this topic, the current state of the Supreme Court and other concerns, please join us in New York City on the evening of Dec. 6, when he discusses these issues with AFJ President Nan Aron. The event is free, and you can register here.
This is especially true because judicial nominations are likely to be more of a focus for President Obama in his second term. With the House in Republican hands for the foreseeable future, it is unlikely that major legislation will pass both bodies of Congress. But the Senate has a constitutional obligation to take up Obama’s judicial nominees—and the fights over them are likely to be fierce. If Reid and his fellow Democrats give up on filibuster reform, they will likely doom the President’s second-term legacy before he even has a chance to write it.