Bench Memos

Law & the Courts

Phony 60-Vote Standard

Various Democrats are trying to use weasely language about a supposed 60-vote standard for Supreme Court nominees in order to try to sound tough to some of their constituents. At the same time, in order to try to appear reasonable to other constituents, they state their support for a floor vote on the Gorsuch nomination.

Well, you can’t have it both ways.

As the Washington Post’s Glenn Kessler explains, there is not, and there never has been, a 60-vote standard for Supreme Court nominees.

To be sure, if Democrats want to take the extraordinary step of trying to filibuster the Gorsuch nomination, 60 votes would be needed for cloture in order to proceed to a floor vote on the nomination. But Democrats who want to go this route should be explicitly talking filibuster, not using the “slippery language” that Kessler properly criticizes.

And, of course, if a filibuster were to prevent cloture, Senate Republicans, following the path that Democrats paved in 2013 and promised to follow in the event of a Republican filibuster of a Hillary Clinton nominee to the Supreme Court, would be able to use their simple majority power to abolish the filibuster for Supreme Court nominees.