The fight over the future of the Supreme Court reached its culmination in the Senate today. Senate Democrats attempted to filibuster the confirmation of Neil Gorsuch, refusing to end debate and allow the Senate to proceed to a full vote. The Republicans, in turn, upended decades of Senate practice, deploying the so-called "nuclear option" and allowing Supreme Court justices to be confirmed with the support of only a simple majority of senators.
The final vote to confirm Gorsuch won't come until tomorrow evening, but this much is clear: Gorsuch will be confirmed, while the Senate and the Supreme Court may be fundamentally changed for years to come.
The Filibuster and the Nuclear Option
Under longstanding Senate procedures, if any senator objects to ending the debate and moving to a vote, a supermajority of 60 senators is required to overrule them in what's known as a cloture vote. If 41 senators vote against cloture, you have a filibuster -- the inability to move forward and vote on an issue. While the actual confirmation vote can be won with a simple majority, the threat of a filibuster has, for the better part of a century, meant that judicial candidates would need broad support.
(Note: modern filibusters don't actually require senators to continue debating indefinitely, "Mr. Smith Goes to Washington" style, in order to prevent a vote. That practice has not been required for decades.)
Enter the "nuclear option." What this allows is a change in Senate practice, permitting the debate to end if a simple majority of senators vote for cloture. The nuclear option has been threatened for years, as a way to pressure opposition parties away from obstructing judicial nominees. Indeed, the Democrats exercised the option in 2013, removing the filibuster on judicial confirmations except for the Supreme Court. Today's vote removed the filibuster for SCOTUS confirmations as well, though it will remain in place for legislation.
How the Votes Went Down
So, how did this all play out today? The first cloture vote was 55-45, failing to get the 60-vote supermajority needed to end debate. Four Democrats (Joe Donnelly of Indiana, Heidi Heitkamp of North Dakota, Joe Manchin of West Virginia, and Michael Bennet of Colorado) joined the Republicans in voting to end the debate, but that was four short of what the Republicans needed. (Senator majority leader Mitch McConnell also voted against cloture.)
From there, the Senate moved to reconsider, which passed 55-45, initiating the procedure for altering the 60-vote threshold. A vote on whether to postpone Gorsuch's nomination failed in a party-line split, 48-52. Then the Senate voted to eliminate the filibuster, a vote that passed, again entirely along party lines. Finally, the Senate voted again to end the debate. This time, the 55 votes were enough.
That sets up a final vote for tomorrow evening, when it is virtually guaranteed that Gorsuch will be confirmed.
For the latest Supreme Court news, subscribe to FindLaw's SCOTUS Newsletter.
- As Filibuster Looms, What's Ahead for Gorsuch's Confirmation Vote? (FindLaw's U.S. Supreme Court Blog)
- As Gorsuch Testifies, the Supreme Court Overrules Him (FindLaw's U.S. Supreme Court Blog)
- Is Gorsuch More Conservative Than Clarence Thomas? (FindLaw's U.S. Supreme Court Blog)