It’s showdown week for the Gorsuch nomination. Today, the Senate Judiciary Committee debates and votes on the nominee. Democratic committee members scored a minor victory after the hearings had concluded when they were able to head off the effort of Republican committee members to have a quick vote on Gorsuch. The Democrats asked for more time so they could receive and review written responses to questions posed by the senators. The Committee vote on Gorsuch today is expected to fall along party lines (11 Republicans in support; 9 Democrats opposed).
Then the real fireworks are expected when the nomination comes to the full Senate.
Senate Majority Leader Mitch McConnell has announced that the Senate will vote on the Gorsuch nomination by the end of the week, in advance of Congress’s two-week recess. The first step to get to a Friday vote will be for McConnell to move for a full-Senate vote for cloture (i.e., to end debate and bring the nomination to a Senate vote). Under current rules, invoking cloture for a Supreme Court nominee requires 60 votes.
Some Democrats, led by Senate minority leader Charles Schumer, have vowed to filibuster to prevent a vote. To pull this off, Democrats need to secure at least 40 of their 48 senators to vote against moving the nomination to a full Senate vote.
Do the Democrats have the votes? It’s not clear. So far, three Senate Democrats—Heidi Heitkamp (North Dakota), Joe Manchin (West Virginia), and Joe Donnelly (Indiana)—have said they would vote for Gorsuch. (Each represents a state Trump won in November and each is up for re-election next year.) Thirty-six have said they support a filibuster. It’s going to be a close call.
If the Democrats do successfully filibuster the Gorsuch vote, McConnell has made clear that he will use the so-called “nuclear option,” meaning that Republicans will change the Senate rules so that filibusters are no longer allowed for Supreme Court nomination votes. (In 2013, a Democratic-controlled Senate did away with filibusters for lower court nominees.)
What are the Democrats hoping to achieve? Some have suggested that the collapse of the Republican effort to rewrite the Affordable Care Act has emboldened the Democrats, and their leaders are trying to take advantage of the moment to show their unity and strength. Liberal pressure groups are demanding that Democratic senators take a stand. Perhaps some even believe they can win this battle. Senator Schumer has said that he believes Republicans can’t get the sixty votes required for cloture.
Is this a wise strategy for the Democrats? Harvard’s Cass R. Sunstein thinks not. “Two wrongs do not make a right,” he writes in his BloombergView column. “The system for confirming Supreme Court justices is badly broken, and if you insist that it’s all about power, it will stay that way.” Sunstein’s colleague Noah Feldman finds more strategic grounds for the same conclusion: “Neil Gorsuch is no progressive. But liberals could do worse—much worse. And it’s the Senate Democrats’ job to do what they can to reduce the risk of an unqualified, radical Trump nominee in the future.” In the Daily Beast, Eric Segall also argues against the filibuster; Rick Hasen does the same in his Election Law Blog. For a sampling of the case for the filibuster, see Joshua Holland writing in the Nation and Bill Scher in Politico.
This post originally appeared on ISCOTUSnow, the blog of Chicago-Kent’s Institute on the Supreme Court of the United States, on April 3, 2017.