In the past, I've wondered why we only see virtual filibusters nowadays, rather than the real thing. Well, over at the Volokh Conspiracy, Randy Barnett quotes Larry Solum's explanation approvingly as to why a real filibuster (which Solum calls a 24/7 filibuster) won't work:
The contemporary filibuster is a polite affair. Charles Schumer does not talk through the night, bleary eyed and exhausted. Why not? Couldn't the filibuster be broken if the Republicans forced the Democrats to go 24/7? No. Because the 24/7 option actually gives an advantage to the minority. Why? In order to force a 24/7 filibuster, the majority must maintain a quorum at all times, but the minority need only have one Senator present to maintain the filibuster. So 24/7 both exhausts and distracts the majority, while allowing the minority the opportunity to rest and carry on their ordinary business. No modern filibuster has been broken by the 24/7 option. For more on this, see my post entitled Update on Filibusters.Interesting, but I'm not entirely convinced. Of course Larry's right, if the goal of forcing a real filibuster is simply literally to wear your opponents down; the filibusterers can always outlast the filibusterees, for the reasons stated.
But the point of requiring the Democrats to filibuster for real was never to wear them down until they gave in; the point was to create bad publicity for them. Republicans hoped that Democratic filibusters could be exploited in the press to make the Democrats look obstructionist, and get the voters angry with them -- but that plan never got off the ground. Why? Because the non-filibuster didn't have any legs in it. There was no reason for the media to cover the story, because it just wasn't very exciting. In particular, there was no video footage.
On the other hand, a real filibuster is sexy. (I don't mean that literally, unless Mary Carey moves on to the Senate after her bid for California governor succeeds.) It's news. It's not quite as exciting as a high speed car chase, but at least there's something to show to the public. Republicans would have something to point to while saying, "See? Look how ridiculous Democrats are being." It might have backfired; it might have made Republicans look like bullies. But at least it would have put pressure on one side or the other to resolve the situation. This way, Miguel Estrada was just strung along indefinitely, until he finally gave up. Which means that there's no reason to think this won't continue to happen unless and until one side picks up sixty seats in the Senate, which doesn't look too likely too soon.