Senate Minority Leader Chuck Schumer made the rounds this weekend to push his theory that Neil Gorsuch needs 60 votes to be confirmed by the Senate. This is a novel theory without a basis in Senate history, which even the Washington Post gave “two Pinocchios”. It’s true, as a matter of Senate rules, that Schumer needs only 41 votes to filibuster Gorsuch. It’s equally true that if he does, Mitch McConnell needs only 51 votes to change the rules. So, as a matter of raw political power, Schumer is only half right. But as a matter of Senate history and tradition, he’s not even halfway to half right.
In fact, six nominees to be Supreme Court Justices, including two members of the current Court, have been confirmed with less than 60% of the vote:
- In 2006, Samuel Alito was confirmed 58-42.
- In 1991, Clarence Thomas was confirmed 52-48.
- In 1888, Lucius Lamar was confirmed 32-28.
- In 1881, Stanley Matthews was confirmed 24-23.
- In 1858, Nathan Clifford was confirmed 26-23.
- In 1837, William Smith was confirmed 23-18 (Smith ended up declining to serve).
Moreover, the fact that there were 42 votes against Alito and only 37 against Elena Kagan and 31 against Sonia Sotomayor says nothing about the nominees; it simply reflects two facts: one, Senate Democrats were earlier adopters of partisan voting on Supreme Court nominees than Senate Republicans; and two, the Kagan and Sotomayor nominations were voted on while the Democrats (for one Congress) had 59 and 60 Senators in their caucus, respectively.
As I have detailed at some length before here and here, only once in Senate history, in 1968, was a Supreme Court nomination thwarted by less than a majority of the Senate, when the nomination of Justice Abe Fortas to Chief Justice (and the concurrent nomination of Homer Thornberry to replace Fortas as Associate Justice) was put to a cloture vote, and got 45″yes” votes and 43 “no” votes. Notably, Fortas and Thornberry didn’t get 50 votes, and as LBJ’s top domestic-policy aide, Joseph Califano, has recounted, this was a face-saving vote for Fortas and Lyndon Johnson after damaging new information about Fortas’ ethical troubles emerged:
Johnson nodded sadly. He was silent for a long minute. Then, he said, “We won’t withdraw the nomination. I won’t do that to Abe.” Though we couldn’t get the two-thirds vote needed to shut off debate, Johnson said we could get a majority, and that would be a majority for Fortas. “With a majority on the floor for Abe, he’ll be able to stay on the Court with his head up. We have to do that for him.” Fortas also wanted the majority vote.
After Tennery’s testimony, as Johnson had predicted, [Senate Minority Leader Everett] Dirksen withdrew his support and announced he would not vote to shut off debate. On October 1, after a strenuous White House effort, a 45-43 majority of senators voted to end the filibuster, short of the 59 votes needed for cloture, but just barely the majority LBJ wanted to give Fortas. Later that day, Fortas asked the President to withdraw his nomination.
Under those circumstances, it’s not even clear that Fortas would have had a majority for confirmation, as LBJ was twisting arms of his fellow Democrats just for a talking point on cloture. Fortas’ critics were vindicated when his compounding ethical issues led to his resignation from the Court seven months later. The Fortas precedent supports caution and delay on election-year nominations and nominees with emerging ethical scandals, but it offers no support to Schumer’s 60-vote threshold. In fact, neither party filibustered any nominee to the federal bench who had clear majority support until the Schumer-led filibuster of Miguel Estrada to the DC Circuit in 2003: “On seven cloture votes, Estrada received majority support each time, but never enough votes for cloture.” As you will recall, the Estrada filibuster was nothing for Democrats to be proud of:
In November 2001, as Democrats debated whether to undertake an unprecedented filibuster of President George W. Bush’s judicial nominees, liberal groups met with Senate Democrats….In one purloined email, an aide to Dick Durbin told his boss that liberal activists in the meeting “identified Miguel Estrada (D.C. Circuit) as especially dangerous, because he has a minimal paper trail, he is Latino, and the White House seems to be grooming him for a Supreme Court appointment.”
Four Democrats broke ranks from that filibuster, one of whom (Bill Nelson) is still in the Senate.
Schumer’s nuclear strategy is tendentious enough that even the Judiciary Committee’s former Democratic Chairman, Vermont arch-liberal Patrick Leahy, now says that “I am not inclined to filibuster, even though I’m not inclined to vote for him.” Leahy is a big defection, since he voted with Schumer to filibuster both Alito and Estrada, but voted against the 1986 filibuster of William Rehnquist’s nomination to be Chief Justice. Of course, if Schumer wants to show his base that his caucus is putting up a fight but needs more reinforcements, and doesn’t want to trigger McConnell abolishing the filibuster, the best outcome for him may be to attempt a filibuster and lose the cloture vote due to the defection of elderly Democrats from safe states, like Leahy. But it still puts embattled Trump-state Democratic Senators who face re-election in 2018 (many of whom have already indicated their willingness to vote for cloture) in a no-win situation, on the basis of an argument that is transparently false.