This column by ACRU Fellow Ken Klukowski was published March 23, 2017 by Breitbart.
WASHINGTON — Senate Democrats will attempt to filibuster the Supreme Court nomination of Judge Neil Gorsuch, Minority Leader Chuck Schumer (D-NY) announced on Thursday during a speech on the Senate floor.
This is the fourth day of Senate Judiciary Committee hearings on Gorsuch, who currently serves on the U.S. Court of Appeals for the Tenth Circuit. Although the more liberal members of the committee tried to provoke Gorsuch, the Colorado judge remained poised and disciplined during his testimony on Tuesday and Wednesday, avoiding any missteps.
That part of the hearing process is now over, and senators are now listening to witnesses for and against the nomination. Gorsuch appears to continue headed toward a successful confirmation in the Republican-controlled Senate.
But today Schumer criticized what he called Gorsuch’s “lack of candor and desire to answer” questions before the committee. He then announced, “After careful deliberation, I have concluded that I cannot support Judge Neil Gorsuch’s nomination to the Supreme Court.”
While it only takes a simple majority of 51 votes in the 100-member Senate to confirm a nominee, Schumer then went on to say that Gorsuch “will have to earn 60 votes for confirmation.”
This means a filibuster. Under Senate Rule 22, for any question involving debate, if senators wish to continue speaking, it takes a three-fifths vote of the full Senate (60 out of 100) to invoke a motion for cloture, which limits debate to no more than 30 additional hours, after which a final vote must be held. When senators insist on continuing debate until cloture shuts them down, it’s called a filibuster.
Filibusters have historically been for legislative debates only, not judicial nominations. The first time in American history that a filibuster was used to stop any judicial nomination was 2003, when Senate Democrats filibustered President George W. Bush’s nomination of Miguel Estrada to the U.S. Court of Appeals for the D.C. Circuit, followed soon thereafter by other Bush judicial nominees.
The only previous filibuster attempt ever made over a judge was in 1968 against the nomination of Justice Abe Fortas to become chief justice and replace Earl Warren. However, a majority of senators went on record saying they would vote against Fortas in any event, so it was not the filibuster that stopped Fortas. It was instead lacking enough votes to confirm him.
For Estrada, by contrast, a majority of the Senate went on record supporting his confirmation, so it was the 60-vote threshold for cloture obstructing an up-or-down vote that defeated his nomination.
The architect of the then-unprecedented strategy of using a filibuster to block an up-or-down vote on judicial nominations was none other than Schumer, who at the time had only been in the Senate for less than five years, and was not in a leadership position.
In November 2014, then-Majority Leader Harry Reid (D-NV) reinterpreted the rules of the Senate so that the filibuster could not be used on any presidential nominations except the Supreme Court, clearing the way for Democrats to confirm several nominations that Republicans had blocked.
This tactic has been called the “constitutional option” by some, and the “nuclear option” by others.
With Schumer’s announcement that he will lead a filibuster of Gorsuch’s nomination, Republicans must either pick up eight Democrats to join Republicans in voting for cloture, or Republicans must hold together at least 50 of their 52 members (with Vice President Mike Pence as a tie-breaker) to extend the constitutional option to Supreme Court nominations.
The Senate Judiciary Committee is expected to vote Gorsuch out of committee on April 3, sending the nomination to the Senate floor for this filibuster showdown.