Sometimes I suspect that the fillibuster was invented specifically in order to support Carl Schmitt’s critique of liberal proceduralism. First, the fact that the pretense of debate would be “weaponized” and turned essentially into a brute-force power play represents the ultimate bankruptcy of the fiction of parliamentary politics as a realm of reasoned deliberation. Second, it is a textbook example of an attempt to create rules to govern exceptional situations — in this case, the determination of a minority to obstruct the normal course of legislation. As with all such attempts, it was only a matter of time before someone discovered a way to benefit politically from insisting on the letter of the law (demanding cloture votes on everything) rather than its spirit (reserving fillibusters for things that are a “really big deal,” whatever that’s supposed to mean).
In my opinion, there should be no rules governing the exceptional situation of a minority determined to refuse the outcome of the regular voting process. A minority in that situation, instead of hiding behind some kind of parliamentary technicality, should simply violate the rules — for example, they could refuse to cede the podium, or use non-violent resistence to physically impede the process of voting, or barricade themselves in the legislative chamber. As with all civil disobedience, they should be willing to take the punishment as well.
In such a situation, there would be a genuine political conflict for the moral high ground. As it stands, no clear conflict can emerge. According to the rules, what the Republicans are doing is perfectly “fair” insofar as they are entitled to demand as many cloture votes as they want. Whether it’s unprecedented or abusive or whatever doesn’t matter — the rules are the rules. If you don’t want the legislative process to be constantly short-circuited, then you shouldn’t have a rule that explicitly allows that to happen. If people feel strongly enough about an issue that they’re willing to put themselves on the line by breaking the rules, then they should go ahead and break the rules and see how it plays out.
(This is not an idea I just thought of — I published a letter to the editor in the Chicago Sun-Times in 2006 advocating that Senate Democrats (then including Obama) physically shut down the Senate if a fillibuster against the nomination of Samuel Alito to the Supreme Court did not hold.)