In recent weeks, Senate Minority Leader Chuck Schumer (D-N.Y.) has threatened to lead his caucus in filibustering President Donald Trump’s nominee to the Supreme Court, Judge Neil Gorsuch, often citing a rule that a Supreme Court nominee needs a 60-vote supermajority in order to be appointed.
The alleged rule has been debunked by fact-checkers, but Schumer is still holding out, arguing that Republicans would be violating the established norms of the Senate if they were to subject Trump’s Supreme Court nominee to a simple up or down vote.
“If Judge Gorsuch fails to earn 60 votes and fails to demonstrate he is mainstream enough to sit on the high court, we should change the nominee not the rules,” Schumer said in a Wednesday press conference. When pressed by Sinclair Broadcast Group, he acknowledged that there was no hard and fast rule subjecting every Supreme Court nominee to approval by a supermajority, but “we believe in a 60-vote threshold.”
That belief is different from a rule. And Republicans are now arguing that even though the last four nominees to the Supreme Court were forced to overcome the 60-vote threshold for their lifetime appointments, it is not the standard.
Senate Majority Leader Mitch McConnell (R-Ky.) said on Wednesday that his Democratic colleagues are invoking a “mythical 60 vote standard that doesn’t exist,” because of their 2016 electoral loss. “A 60-vote threshold has never been the standard for a Supreme Court nomination.”
The 60-vote standard was even debunked by the Washington Post fact-checker two months ago, saying Democrats were using “misleading” and “slippery” language. The claims by Schumer and other leading Democrats earned Two Pinocchios.
On the current court, there are two members, Justice Samuel Alito and Justice Clarence Thomas, who made it to the court with fewer than 60 votes. The sudden insistence on the higher vote threshold by Democrats appears to many partisans to be a desperate effort to oppose all things related to President Trump.
“There are consequences to elections and they haven’t accepted the fact that Trump won,” Sen. Orrin Hatch (R-Utah) insisted. “For them to cry about it now I think shows a lack of good faith.”
On the floor of the Senate, Hatch described the opposition to Garland as “kind of a war” with a level of partisanship that is “demeaning to the Senate.”
Sen. Ted Cruz (R-Tex.) emphasized that President Trump’s success in the November election “was a referendum on the court,” where the voters were given a “stark choice” in candidates, and even a list of 21 potential Supreme Court nominees published by the Trump campaign.
According to exit polls, 21 percent of voters said that the Supreme Court nomination was the most important consideration in how they cast their ballot, over half of those voters were Trump supporters.
“Given the national election we had with this issue front and center, I believe it gives this nomination a kind of super-legitimacy,” Cruz said.
But still Democrats and moderates argue that in order for the nominee to have that legitimacy, he needs to earn at least eight Democratic votes and cannot get by with a razor-thin majority. As of last Thursday, their strategy is to impose that standard Judge Gorsuch by using the filibuster.
The big concern is that their threat to filibuster will trigger the Republican leadership to invoke the so-called “nuclear option,” which would effectively remove the option of a Democratic filibuster and lower the vote threshold to a simply 51-vote majority. Trump has openly stated his support for McConnell to “go nuclear,” but if the majority leader does that, it will represent an actual change in Senate rules and precedent.
A vote on Gorsuch is currently scheduled to take place on Friday, April 7 before lawmakers leave Washington for the Easter recess.
According to Carrie Severino, chief counsel and policy director at the Judicial Crisis Network, Democrats are adopting the most extreme version of partisan gridlock in the history of Supreme Court nominations.
“I think it’s a new low in our confirmation process,” she said of the threatened Democratic filibuster.
Throughout the history of Supreme Court appointments, the Senate has only chosen to invoke cloture (a 60 -vote procedural motion) about 17 times, and there has only been a small handful of actual filibusters, where lawmakers actively sought to block the nominee.
In order to impose a 60-vote threshold as a procedural vote, senators must actively invoke cloture, something Severino described as “historically an utter anomaly.”
But that began to change in 2006, when Democrats attempted to filibuster Samuel Alito. Ultimately, enough Democrats were opposed to using the filibuster to block a Supreme Court nominee, and although they didn’t support Bush’s nominee, they also didn’t support filibustering him. After Alito, the next three justices were subject to a cloture vote.
For Senate Whip John Cornyn (R-Tex.) holding a simple up or down vote on Judge Gorsuch would be a return to normal order.
“It has only been a recent innovation and an escalation to say that it should be 60 votes,” he told Sinclair Broadcast Group. “I think it would be nothing but returning it back to the way it used to be,” he said, to before the 2006 attempt to filibuster Alito.
Between the Republicans stonewalling President Barack Obama’s Supreme Court nominee, Judge Merrick Garland for a full year and the threats of a Democratic filibuster against Gorsuch, the process of nominating Supreme Court justices is becoming increasingly partisan, argued constitutional law professor at American University, Stephen Wermiel.
The process, he said, has created a regrettable reality with “political strategy and maneuvering being as important as the credentials of the nominee.”
He warned that as this hyper-partisanship continues to ramp up around America’s highest court, it is likely that there will be a so-called nuclear showdown in the future.
“The politics are such that I think there is an inevitability about the process, that if the Republicans don’t eliminate the filibuster now … they are almost certainly going to have to get rid of the filibuster next time,” Wermiel said. “It’s almost certain that the next Supreme Court nomination, if it happens while Trump is still in the White House and the Republican control the Senate, is going to be the real all-out battle.”
After Schumer declared his opposition to Gorsuch on the floor last week and announced that his colleagues on the left should join him in filibustering the nomination, scores of Democratic senators announced their opposition to Gorsuch. According to CNN’s count, there are 28 Democratic senators out of 48 who will not vote for Gorsuch and plan to support the filibuster.
The upcoming 2018 midterm election is a major consideration Democrats have to weigh in their decision to support or block Trump’s nominee. Next year there will be 23 Democratic senators up for reelection and ten of them are in states that Donald Trump carried.
According to a recent Politico/Morning Consult poll, 44 percent of respondents believe the Senate should confirm Gorsuch. Only 25 percent of Democrats polled believe Gorsuch’s nomination should be approved and 55 percent believe he should receive at least 60 votes to be confirmed. If the Democrats in vulnerable seats choose to follow the recent polls and appeal to their base, it would suggest that they should pursue their strategy of blocking Gorsuch.
Even Sen. Bill Nelson (D-Fla.) who opposed the 2006 filibuster against Alito, indicated this week that he will uphold a filibuster against Gorsuch. Nelson faces a challenging reelection bid in 2018, campaigning in a state where Trump won, though only with a 1.4 percent margin.
The evolving views of Sen. Nelson is further evidence of a “new level of gridlock and partisanship” in the U.S. Senate, argued Severino.
By staking a position in opposition to Gorsuch, Democrats are “hoping it wins them points with the hard left and doesn’t lose them points in the middle.” Asked whether the strategy will be politically effective, Severino noted, “We’ll see how well that works in 2018.”
