I would date the judicial wars from the Democrats’ filibuster of Miguel Estrada for a circuit court position in 2001 for purely partisan reasons. Yes, Bork was a travesty, because the man was guilty of nothing but wrong-think. But RBG was approved without objection after Bork, and Thomas and Kavanaugh were both colorably accused of personal misconduct.

The real problem is the virtual filibuster, which became possible in 1975 and slowly grew to create the so-called “60-vote requirement” on most legislation. Democrats used the virtual filibuster against Mr. Estrada, and were going to use it against other Bush appointees until Majority Leader Frist threatened to do away with the filibuster for judgeships. That “nuclear option” was avoided when fourteen senators, some from both parties, agreed that they would not support a filibuster against a judge absent “extraordinary circumstances.” Without the support of this “Gang of 14,” any filibuster would fail.

As might be expected, however, the Gang of fourteen eventually succumbed to partisanship when the GOP found itself in the minority and Pres. Obama was appointing the judges. (Lindsey Graham was in the Gang of 14, we know what man of principle he is.) So, the GOP started filibustering Obama’s judges, and Harry Reid went nuclear. Reid’s action was limited to lower court judges, but there was no SCOTUS nomination on the horizon, so it’s difficult to infer anything about what he would have done if there were one looming.

In 2007, Chuck Schumer laid the groundwork for what happened to Merrick Garland by announcing his intent to oppose any SCOTUS nomination by Pres. Bush after July of 2007 (sixteen months before the next election). Schumer’s bluster accomplished nothing, but it gave McConnell the “excuse” to use it as “precedent” for his obstruction of Obama’s appointment of Garland. (Yes, Schumer’s a moron, and McConnell’s an asshole, but that’s not what we’re here about today.) When Trump took office and the GOP controlled the Senate, the Dems did filibuster Justice Gorsuch in retaliation for Garland, a lot of sound and fury signifying nothing. McConnell simply expanded the no-filibuster rule to SCOTUS nominees and, Bob’s your uncle, Neil’s your Justice.

None of these shenanigans would have been possible in Jimmy Stewart’s day. Filibustering a judge is difficult if you actually have to stand up and say bad things about someone who is eminently qualified for the position. It’s especially difficult if all of the Senate’s other business must grind to a halt during the filibuster. That was the rule before 1975, when filibusters were expensive in political terms and rare as a result.

Sen. Jeff Merkley (D., OR.) has been working for several years with colleagues of both parties to bring back the “talking” filibuster, but he has never had the support of the majority leadership. That may change if the Democrats get the Senate back next year. Or not. Merkley’s rule may or may not impose a high enough price on filibusters. It seems like thin gruel to me, but I’m not enough of a parliamentarian to know what the actual impact of the rule would be. Any effort to restore the filibuster to its rightful place as a goad to compromise and not a broom through the spokes would be a step forward. Eliminating the filibuster entirely would be a mistake. We would miss it if it were gone.