Senate Minority Leader Chuck Schumer (D-N.Y.) on Thursday cited a supposedly grand tradition of requiring Supreme Court nominees to receive 60 votes in order to win confirmation. The facts don’t back him up.
“It’s nonsense,” said Carrie Severino, chief counsel and policy director at the Judicial Crisis Network, which supports Judge Neil Gorsuch’s nomination to the high court. “Anyone who’s followed the Supreme Court for more than five minutes knows that’s not true.”
Schumer’s comments suggest Democrats are prepared to dig in to fight Gorsuch’s nomination by any means necessary. A filibuster would be close to unprecedented, but Schumer attempted to make it seem par for the course.
“We Democrats will insist on a rigorous but fair process,” he said from the Senate floor. “Part of that process entails 60 votes for confirmation. Any one Democrat can require it. Many already have. It was a bar met by each of [former President] Obama’s nominations. Each received 60 votes. And most importantly, it’s the right thing to do.”
Sen. Tom Carper (D-Del.) later picked up on Schumer’s assertion.
In fact, however, two sitting justices won fewer than 60 votes in their Senate confirmations. Justice Clarence Thomas received 52 votes, and Justice Samuel Alito got 58.
“It’s an arbitrary standard because they just don’t like the nominee,” said Rachel Boyard, an expert at The Heritage Foundation. “It’s wrong for Democrats to say it’s always 60.”
Typically, filibusters have been rare. Democrats tried to launch one against Alito but managed to sustain only 25 votes to keep the delaying tactics going. William Rehnquist also faced filibuster attempts when President Richard Nixon nominated him to the high court in 1971 and then again in 1986 when President Ronald Reagan elevated him to chief justice.
Only once has a Supreme Court nomination been successfully filibustered; President Lyndon Johnson withdrew the nomination of Associate Justice Abe Fortas to become chief justice after a filibuster amid an ethics scandal.
Don’t tell that to Schumer, though. He said a 60-vote threshold ensures a “mainstream” justice.
“Requiring 60 votes has always been the right thing to do on Supreme Court nominations, especially in these polarized times,” he said. “But now in this new era of the court, in this new administration, there is even heavier weight on this tradition.”
Severino said Schumer is conflating the filibuster with ordinary up-or-down votes. Democrats starting employing the tactic against lower-court judges during the George W. Bush administration. But Supreme Court nominations that have been moved to the floor have been granted votes.
“He seems to want a standard of 60 votes for a Republican nominee and 51 votes for a Democratic nominee,” she said. “They’re still throwing a hissy-fit over the election.”
Schumer argued Thursday that Gorsuch is out of the mainstream and could not be counted on to stand up to business special interests. But Severino and Boyard said it is a hard argument to make with a straight face, given the fact that the Senate confirmed Gorsuch in 2006 for a seat on the 10th U.S. Circuit Court of Appeals on a voice vote.
It is unclear how unified Democrats will remain as the Gorsuch nomination moves forward. Many Democrats are still seething over the Republican majority’s decision to freeze out Obama’s nomination of Merrick Garland to the seat without even holding hearings. But Boyard said she believes some Democrats will want to at least grant Gorsuch a vote, even if they vote against him.
Paul Collins, a professor and director of legal studies at the University of Massachusetts, Amherst, said Gorsuch’s credentials are impeccable. But he added that anger of the blocked Garland nomination might trigger a filibuster, nonetheless.Neil Gorsuch: ‘Evangelicals Are Ecstatic’Reactions from the faith world to the Supreme Court nominee
“Historically, filibusters are very rare and nominees have been given an up-or-down vote,” said Collins, who co-wrote a book in 2013 on Supreme Court confirmation. “What you’re filibustering, if that’s what they decide to do, is the idea of this being a stolen seat.”
Severino said former Democratic Senate Leader Harry Reid, who eliminated the filibuster for most appointments, indicated that he would not hesitate to expand that rule to cover Supreme Court nominations if necessary.
“They weren’t wringing their hands and hemming and hawing about institutionalism,” she said.
Majority Leader Mitch McConnell (R-Ky.) could decide to employ the so-called “nuclear option,” if Democrats won’t back down. “It will be Chuck Schumer’s fault if it happens,” Severino said.
Boyard said there is a less extreme option open to Republicans — enforcing the “two speech rule.” Under Rule 19, she said, Republicans can hold each Democrat to two speeches during the Gorsuch confirmation debate. That would mean the Democrats could drag out debate but not ultimately prevent a vote. And it would allow the Senate to keep the filibuster rule, Boyard said.