Sean Davis of The Federalist and James I. Wallner and Ed Corrigan at the Heritage Foundation have offered one intriguing way of working through a Gorsuch filibuster: Use Rule XIX of the Senate as a way of ending the filibuster. Under Rule XIX, each senator is allowed to give no more than two speeches on a given topic during each legislative day, which is distinct from the calendar day. Extending the legislative day over multiple calendar days, the Republican majority would let each Democrat who wanted to filibuster Judge Gorsuch speak for as long as he or she wanted to but would hold each senator to only two speeches on Gorsuch. Once all filibustering Democrats had given their two speeches, a vote on Gorsuch would commence; there would be no need for a cloture vote on the nomination because, under Rule XIX, no more filibustering senators could speak.
Applying Rule XIX could solve some problems for both Republicans and Democrats. It would allow Republicans to confirm Neil Gorsuch without going down the road of partisan nihilism charted by Harry Reid. More than a few Senate Democrats are aware that filibustering Gorsuch is a dangerous strategy (see Claire McCaskill’s comments on the subject). But they fear the risks of a primary challenge in voting for cloture on Gorsuch. Rule XIX would allow Gorsuch to be confirmed without Democrats’ having to walk the plank on a vote for him. Applying Rule XIX to the Gorsuch vote would also shift the vote from binaries (yes/no on cloture) to a spectrum of action (such as how long to speak for). This spectrum would give rise to new political calculations. Does a senator like Montana’s Jon Tester, whose state Trump won decisively in 2016, want to give a ten-hour stem-winder against Gorsuch, or deliver more abbreviated remarks? How much does he want to make sustained, on-the-record attacks on Gorsuch, and thereby risk alienating his constituents back home — many of whom voted for Donald Trump so that he could make nominations like Gorsuch?