As of Thursday April 6, 2017, Democrats in Senate had enough votes (40) to filibuster and not end the debate for confirmation of Judge Neil Gorsuch.[1] But that did not go ahead as they thought it would. In a collaborative article in the Pathways Newsletter, I discussed options for Trump’s SCOTUS pick. Now it’s a reality that Senate faced. After a 11-to-9 party line vote, the Senate Judiciary Committee send the nomination to the full Senate for vote this week.[2]
Currently, to approve a Supreme Court nominee, 60 Senators must vote for ending the debate. If the Senate votes to end the debate, only a simple majority of Senators is needed to vote for confirmation. Once Senate Democrats filibuster, the remaining Senators can change the rules and require only a simple majority to vote on Court nominees, as is the rule for other nominees. This is known as the “nuclear option,” in which the 2/3 majority would change to a simple majority.[3] In 2013, the Senate used the “nuclear option” to require only a simple majority to confirm executive branch officials and other federal judges. The Supreme Court positions were not a part of the nuclear option that time.
The same day that Democrats filibustered, the Republicans in Senate went “nuclear” and changed the rules to require only a simple majority vote to end debate on a Supreme Court nominee.[4] After hours of questioning, and a lengthy debate process, with a major rule changed, Gorsuch was confirmed to the Supreme Court with a final tally of 54-45 in his favor.[5] He will be the first Justice that was a former Supreme Court clerk, to serve alongside the Justice he clerked for, Justice Kennedy.[6]
[1] Wilson Andrews et. al., Will Democrats Filibuster to Try to Block Gorsuch From the Supreme Court?, The New York Times (Apr. 3, 2017 2:10 PM) https://www.nytimes.com/interactive/2017/03/30/us/politics/gorsuch-senate-filibuster.html.
[2] Matt Flegenheimer, Senate Judiciary Committee Approves Gorsuch in Party-Line Vote, The New York Times (Apr. 3, 2017 2:57 PM) https://www.nytimes.com/2017/04/03/us/politics/gorsuch-confirmation.html?_r=0.
[3] Burgess Everton, GOP could nuke filibuster for Supreme Court nominees, Politico (Jan 2, 2017 6:19 PM) http://www.politico.com/story/2016/11/gop-supreme-court-filibuster-nuclear-option-231582.
[4] Ashley Killough, Senate GOP triggers nuclear option to break Democratic filibuster on Gorsuch, CNN (Apr. 7, 2017 9:26 AM) http://www.cnn.com/2017/04/06/politics/senate-nuclear-option-neil-gorsuch/.
[5] Adam Liptak, Neil Gorsuch Confirmed by Senate as Supreme Court Justice, The New York Times (Apr. 7, 2017) https://www.nytimes.com/2017/04/07/us/politics/neil-gorsuch-supreme-court.html?_r=0.
[6] Id.