Democrats Have the Votes for a Filibuster of Gorsuch

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Neil Gorsuch will very likely become a Supreme Court Justice, but only after Republicans ban the SCOTUS filibuster forever. Photo: Chip Somodevilla/Getty Images

The mystery did not last long: After much speculation about whether Democrats would be able to get the Senate votes they needed to launch and sustain a filibuster against placing Neil Gorsuch on the Supreme Court, Chris Coons of Delaware became the 41st to pledge to vote against any motion to move forward with the confirmation. That means when the full Senate votes on Gorsuch later this week, Mitch McConnell will have to fulfill his threat to go with the “nuclear option” to eliminate the filibuster altogether for SCOTUS nominations.

It is important to note that voting against a filibuster (i.e., voting for cloture to cut off debate and proceed to a confirmation vote) does not necessarily mean supporting the “nuclear option.” Indeed, it is very unlikely the Democrats opposed to a Gorsuch filibuster (so far, Senators Bennet, Donnelly, Heitkamp, and Manchin) will vote with Republicans to end SCOTUS filibusters forever. So it’s important that McConnell keep virtually all Republicans onboard, and the conservative interest and advocacy groups deeply invested in Gorsuch’s confirmation will police that vote carefully. The procedure is explained by Chad Pergram:

The Senate Judiciary Committee meets Monday to vote the Gorsuch nomination out of committee and dispatch it to the floor. Actual debate on Gorsuch begins in the Senate on Tuesday. Also on Tuesday, McConnell files a “cloture petition” to end debate on Gorsuch. By rule, cloture petitions require an intervening day before they’re “ripe” for a vote. So a vote to end debate on Gorsuch likely comes Thursday.

After it fails, McConnell will go nuclear:

All McConnell must do is make a point of order that the Senate only needs a simple majority (51 votes) to end debate on a Supreme Court nominee. Naturally, whichever GOP senator is presiding over the chamber would rule against McConnell. After all, that’s not the precedent. But McConnell would then appeal that ruling, forcing another vote. At that stage, the Senate is voting to sustain the ruling of the presiding officer. But if 51 senators vote no, the Senate has rebuked the chair’s ruling and set a new precedent. Only 51 yeas are then necessary to break a filibuster on a Supreme Court nominee.

In the unlikely event the GOP loses two senators, Mike Pence will be standing by to supply the 51st vote.

The Senate would then re-take the failed cloture vote on Gorsuch. Presumably Gorsuch secures 51 yeas to end debate. And then Democrats, fuming at the GOP’s political artifice, would require the Senate to burn off 30 hours before a final vote to confirm Gorsuch on Friday night. The Senate usually grants opponents of an issue 30 hours of debate once the body votes to end debate.

So we are looking at Gorsuch’s being confirmed late Friday or perhaps over the weekend, if everything goes as planned, before senators head off for a two-week Easter recess. Republican senators will go home with major worries over a possible government shutdown and their failed Obamacare repeal-and-replace legislation. But they can express satisfaction in having completed their 13-month project of keeping Barack Obama from replacing Antonin Scalia on the Court, and instead confirming a Justice who seems to be the next best thing to Scalia among most conservatives. All it took was breaking every available precedent, once with Merrick Garland and then with Gorsuch. And down the road, when a future Democratic president prepares to make Supreme Court nominations, Republicans might regret it all.

Democrats Have the Votes for a Filibuster of Gorsuch