Blog Post

The next standoff in Congress: The Supreme Court filibuster

March 27, 2017 | by Scott Bomboy

After a week of high drama in the House and Senate, lawmakers in Washington could enjoy a quieter period in Congress before another all-out fight in early April over Neil Gorsuch’s confirmation as a Supreme Court justice.

On Monday, the Senate Judiciary committee is set to start its deliberations over Gorsuch when it convenes an executive business meeting at 12 p.m. (It is also considering two other nominations at that time, for Rod Rosenstein as Deputy Attorney General and Rachel L. Brand as Associate Attorney General.)

Committee chair Chuck Grassley has made it clear he wants his committee’s report on Gorusch’s confirmation voted on and sent to the full Senate this week, setting April 3 as a final deadline for the nomination to be in the hands of Senate Majority Leader Mitch McConnell.

That comes despite threats from Senate Minority Leader Chuck Schumer to filibuster the Gorsuch nomination, forcing the Republicans to get 60 votes in the Senate to break a cloture motion and move the confirmation to the full floor for 30 hours of debate – most likely by April 4.

Over the weekend, there was some public sparring over Schumer’s filibuster threat – and the likelihood Schumer can get eight Democrats or Independents to not vote with the Republicans on the Gorsuch’s cloture motion. There are 52 Republicans in the Senate and all are expected to vote to break the filibuster.

So far, Democrats Schumer and Washington Senator Patty Murray are on record as voting for the filibuster. The Associated Press reported that four Democrats, Kamala Harris, Sheldon Whitehouse, Jack Reed and Tom Udall, will vote along with Schumer and Murray.

Of the remaining 42 Senators in the Democrat/Independent caucus, the GOP’s McConnell needs to get eight Democrats to vote on the cloture motion to end the filibuster. Five Democrats are up for re-election in 2018 in states that voted heavily for Donald Trump: Joe Donnelly, Claire McCaskill, Jon Tester, Heidi Heitkamp and Joe Manchin. McConnell, at a minimum, would need those votes and three others.

Unlike last week’s drama over Obamacare in the House, the votes in the Gorsuch drama will be known. Senator Majority Leader McConnell can’t use the “nuclear option,” a procedural move to kill the filibuster, until there is a floor vote on the cloture motion, and each Senator’s vote is on the record.

That puts a small group of Senators in a predicament. For example, Manchin, a moderate from West Virginia, could vote with the Republicans. If his vote contributes to the defeat of Schumer’s filibuster, he’ll anger Democrats, but he could also increase his re-election chances. But what if Manchin sides with the Democrats and McConnell uses the nuclear option? Then Manchin becomes a big GOP target in the 2018 election cycle.

Complicating the drama is the shocking defeat of the Obamacare repeal plan in the House last week. If the Democrats block the Republicans from winning the cloture motion vote in the Senate, McConnell would be under intense pressure to kill the filibuster and move the Gorsuch vote to the full Senate, where the Republicans have the simple majority needed to confirm Gorsuch.

It seems unlikely that McConnell would pass on killing the filibuster, to preserve it in the Senate, at the cost of denying President Trump and the Republicans a big victory in getting Gorsuch on the Supreme Court.

Over the next week, political observers will be watching Schumer and his efforts to get the votes needed to obtain his filibuster – or possibly moves by other senior Democrats to join the cloture vote with the Republicans, on the theory that the filibuster should be preserved if there is another Court nominee in the next four years.

Scott Bomboy is the editor in chief of the National Constitution Center.


 
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