The U.S. Senate used to be a place where a senator could oppose a Supreme Court nominee without blocking a confirmation vote. Samuel Alito was confirmed to the court with just 58 yes votes in 2005 because 72 senators (12 more than needed) voted to end a filibuster on his nomination. Times, however, have changed. As the upcoming vote on Neil Gorsuch, President’s Trump’s nominee to the court, appears to indicate, the deference to tradition that led some senators to oppose nominees while still allowing their confirmations to move forward has all but disappeared.
Senators effectively don’t differentiate between cloture and up-or-down votes anymore. Blame decades of increasingly bitter and increasingly partisan Supreme Court fights, including the Republicans’ refusal to hold a hearing — let alone a vote — on then-President Obama’s nominee Merrick Garland. Many senators have apparently given up on that old Senate and most of the norms that went with it.
A nominee matching Gorsuch’s ideology and qualifications never stood a good chance of getting 60 votes for confirmation. A model I built to forecast Supreme Court confirmation votes, based on nominations since Robert Bork’s in 1987, suggested that because Gorsuch is so conservative, he would get only around 55 “yes” votes for confirmation. Indeed, so far, exactly 55 senators have said they will vote to confirm Gorsuch. And it’s who we’d expect: the chamber’s 52 Republicans and three Democrats — Joe Manchin of West Virginia, Heidi Heitkamp of North Dakota and Joe Donnelly of Indiana — who are all moderates with a penchant for voting against their party.
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But getting 60 votes for confirmation was never the name of the game when it came to Gorsuch. He needed 50 for confirmation and 60 to end the filibuster. The 50 for confirmation was essentially assured from the start, and it seemed plausible that some Democratic senators would vote “no” in the up-or-down vote on Gorsuch but “yes” to end the filibuster. (My model forecasts the former, not the latter.) Sure, Democrats were peeved about Garland, but plenty issued statements saying they were open to a Gorsuch nomination.
Maybe that’s what would have happened 10 years ago, but the possibility of an Alito-like confirmation for Gorsuch now seems dead. Gorsuch looks like he’ll fall short of the 60 votes necessary to end a filibuster on his nomination.
What happened? First, Gorsuch lost moderate Democrats, who came to think that voting on confirmation and ending the filibuster were the same thing. (Perhaps because of pressure from their liberal base.) With the possible exceptions of Michael Bennet from Gorsuch’s home state of Colorado and independent Angus King, any moderate member of the Democratic caucus who is against confirmation is also against ending the filibuster. In their statements on Gorsuch, moderates such as Claire McCaskill and Bill Nelson both mentioned their no votes on ending the filibuster and on confirmation in the same sentence and for the same reasons.
Second, Gorsuch lost the Senate traditionalists who might have opposed Gorsuch but voted to end the filibuster, as some Democrats did during the Alito vote. For example, Sen.Patrick Leahy, the Senate’s longest-serving member, had previously said he was “not inclined” to join a Democratic filibuster of Gorsuch. Leahy, though, issued a statement on Monday saying that voting for ending the Gorsuch filibuster and not voting to confirm him “would be defending [a Senate that] no longer exists.”
The result of all of this is that Senate Majority Leader Mitch McConnell looks like he’ll invoke the “nuclear option.” That is, as long as Republicans have 51 “yes” votes on Gorsuch, McConnell will eliminate the filibuster for Supreme Court nominees, and Gorsuch will be confirmed in an up-or-down vote. Republicans will have to hold their own vote to eliminate the filibuster, and we’re likely to see the same dynamic we’ve seen in the Gorsuch affair at play there. A decade ago, it wouldn’t have been difficult to imagine Republicans voting for Gorsuch and against nuking the filibuster. Now it seems unlikely that more than one or two Republican senators will vote for Gorsuch and against the nuclear option. Even John McCain, who helped craft a compromise to keep the filibuster for federal judge nominations during the George W. Bush administration, has said he’ll vote to end the filibuster if it is necessary to confirm Gorsuch.
Republicans, like Democrats, don’t seem keen on adhering to Senate tradition anymore.