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SCOTUS for law students: The Senate votes

The showdown over the nomination of Judge Neil Gorsuch to the Supreme Court plays out in the full Senate this week, and the scene may be a dramatic one.

Both Democratic and Republican leaders have vowed an all-out fight, highlighted by a Democratic threat to keep the nomination from getting to a vote and a Republican vow to change historic Senate rules, if necessary, to see that Gorsuch is approved.

Republican leaders have accused Democratic senators of rank partisanship in their effort to block or defeat the nomination of Gorsuch by President Donald Trump. The nominee, Republican senators say, is highly qualified in experience, education and intellect to take the place of Justice Antonin Scalia, who died on February 13, 2016. Gorsuch shares many of Scalia’s views, they argue, including a faithful commitment to the original meaning of the Constitution.

Democrats say the Republicans stole the seat by refusing even to consider President Barack Obama’s nomination of Judge Merrick Garland, which expired on January 3. Garland, they say, was at least as well qualified in every respect as Gorsuch. Moreover, Democrats say, Gorsuch is too conservative, committed to curtailing the regulatory power of federal agencies and narrowing the Supreme Court’s protection of civil rights and liberties.

How will it all play out? There are enough variables in the process to create suspense about the answer to that question. Will the Democrats try to block a vote with a filibuster? If they do, will Republicans change the rules of the Senate to allow a final vote on the Gorsuch nomination?

The final stages of the process began on Monday when the Senate Judiciary Committee voted to approve the nomination, sending it to the Senate floor on a straight party-line vote, with 11 Republicans supporting Gorsuch and nine Democrats voting to oppose him.

What happens next is a form of high political theater, with part of the story foreordained by Senate rules and part improvised on the Senate floor and in back rooms near the ornate Senate chamber.

Senate Minority Leader Chuck Schumer (D-N.Y.) has vowed that Democrats will filibuster the nomination, a procedure that involves senators on the Senate floor objecting to any vote on the nomination. If that happens, current Senate rules require 60 votes to stop the filibuster through the process known as invoking cloture.

Schumer has insisted that it has become the norm for Supreme Court nominees to get at least 60 votes, citing the confirmations of Chief Justice John Roberts and Justices Samuel Alito, Sonia Sotomayor and Elena Kagan. Roberts (78-22), Sotomayor (68-31) and Kagan (63-37) all received more than 60 votes. Alito was confirmed by a 58-42 vote, but the Senate had earlier voted to invoke cloture by a vote of 72-25. Republican senators say there is no rule that Supreme Court nominees need 60 votes and that Schumer’s contention is simply an attempt to justify blocking Gorsuch.

Because Democrats have been clear about their intent to filibuster, Senate Majority Leader Mitch McConnell (R-Ky.) will call up the nomination today and then immediately file a motion invoking cloture, a move that requires 16 senators to sign a petition to end debate. Once the cloture petition is filed, two days must elapse before the Senate can vote on cloture. A cloture motion filed today will yield a vote on Thursday, according to Senate Rule 22, which governs the filibuster. The Senate can debate the nomination during that period or move on to other business and come back to it when the cloture vote occurs.

If the drama does come to a head on Thursday, here is what might happen. The cloture vote is a formal roll call of all 100 senators. Republicans would have to get 60 votes for cloture, which when invoked starts the clock running on 30 hours of debate followed by a final vote.

The current makeup of the Senate is 52 Republicans, 46 Democrats and two independents who meet and caucus with the Democrats. The Republicans will need to keep all 52 votes and pick up eight more from the Democrats to invoke cloture. Schumer predicted on Sunday that the Republicans would fall short. Only three Democrats, as of this morning, say they will vote for Gorsuch; one additional Democrat says he will oppose the filibuster by voting for cloture. That still leaves the Democrats a margin of several senators in holding the 41 votes they need to defeat cloture.

In some cases, the failure to get cloture might mean the nomination is dead. However, the next step may be even more dramatic. McConnell has vowed that if necessary, he will move to amend the Senate rules to do away with the filibuster for Supreme Court nominations. Through a parliamentary maneuver, commonly known as the “nuclear option,” the rules change can be accomplished with a simple majority of 51 senators. Although some Republican senators have expressed reluctance to change Senate rules, they may be heavily pressured by McConnell and the White House to fall in line if that is the only way to confirm Gorsuch. Both Trump and McConnell have staked considerable political capital on getting Gorsuch confirmed.

To set the nuclear option in motion, McConnell would ask for recognition on the Senate floor right after the cloture vote fails, calling for a point of order. His point of order would be essentially that the requirement of 60 votes to consider a Supreme Court nomination is unconstitutional because the Constitution does not specify any higher number for such nominations. A point of order cannot be debated and takes precedence over other matters in the Senate.

Once McConnell has made the point of order, the presiding officer of the Senate, either Vice President Mike Pence or the president pro tempore of the Senate, currently Sen. Orrin Hatch (R-Utah), would immediately declare the current rule unconstitutional. Democrats would then immediately appeal that ruling, but McConnell would move to table the appeal. Tabling the appeal requires only a simple majority vote. After the appeal has been tabled, the Senate rule would revert to the basic practice of a simple majority vote for Supreme Court nominations. With that change in place, the Senate would need only 51 votes to invoke cloture. The change would set the stage for what McConnell has announced as a final vote to approve Gorsuch on Friday.

Why is this battle over the filibuster so dramatic? The filibuster has been used in the Senate for more than 150 years. The term, according to the Senate’s website, is derived from a Dutch word meaning “pirate.” The filibuster was formally incorporated into Senate Rule 22 in 1917 and required a two-thirds vote of the Senate to cut off debate. Although the filibuster was not used that often, it was considered a hallmark of the deliberative nature of the Senate that even a single senator could hold the floor and force debate to continue.

Senate attitudes have been changing, however. As the institution has grown more partisan, the filibuster has itself become a target of debate. In 1975, the Senate changed the rule to require only a three-fifths vote to break the filibuster, currently 60 senators. In 2013, in a bitter partisan fight, the Senate changed the rule again so that debate on all nominations by the president, except those for the Supreme Court, may be halted by a simple majority vote.

Although Democrats now are likely to object to changing the rule, it was the Democratic Senate leadership that made the 2013 rule change. At the time, Democrats accused Republican senators of unfairly blocking Obama’s nominees to federal district and appeals courts, and they used the nuclear option to change the rule for all federal appointments except those of Supreme Court justices.

Historically, the filibuster has been used most famously by senators to block civil rights legislation. Southern senators prevented consideration of the 1964 Civil Rights Act for 60 days before it was finally approved. According to the Senate, the late Sen. Strom Thurmond of South Carolina has the record for talking on the Senate floor: Thurmond spoke for 24 hours and 18 minutes in order prevent a vote on a 1957 civil rights law.

Filibusters have been rare for Supreme Court nominations, but the Gorsuch nomination is not the first time the filibuster has come into play in this context. The most recent attempt to filibuster a Supreme Court nomination, discussed above, was the confirmation of Alito in 2006. The most successful filibuster was in 1968, when Republicans and Southern Democrats combined to block the nomination of Justice Abe Fortas to succeed Chief Justice Earl Warren. There were only 45 votes for cloture, so a vote on confirmation was blocked, and President Lyndon Johnson withdrew the Fortas nomination. Warren was eventually replaced by Chief Justice Warren Burger, who was nominated by President Richard Nixon in 1969.

Other Supreme Court nominees have failed to gain Senate confirmation. The earliest example dates back to 1795, and the most recent occurred in 1987, when the Senate rejected the nomination of Judge Robert Bork. Most of these rejections did not involve filibusters, however.

Whatever the outcome of the Gorsuch nomination, this will be a week filled with history, politics and drama in the Senate.

Recommended Citation: Stephen Wermiel, SCOTUS for law students: The Senate votes, SCOTUSblog (Apr. 4, 2017, 11:10 AM),