Today, a number of Democratic senators thought to be swing votes on a Gorsuch filibuster came out against him. Jeanne Shaheen (N.H), Maggie Hassan (N.H), and Amy Klobuchar (Minn.) all have announced their support for the latest talking point: a "60-vote threshold." As Senator Shaheen's press release reads:
As Judge Gorsuch’s nomination comes to the floor, I will support a 60-vote threshold for approval, an appropriate high bar that has been met by seven of the eight current Supreme Court justices.
In fact, 6 of the current 8 Supreme Court justices were confirmed with fewer than 60 votes (Alito and Thomas), so 25 percent of the Supreme Court was approved with fewer than 60 votes.
In addition to being novel, the "60-vote threshold" is a bit ambiguous. What does it even mean to support a 60-vote threshold? Does it mean that one thinks a Supreme Court justice should ideally have 60 votes to be confirmed but that one won't do that much to stop the nomination of a justice who doesn't pass that threshold? Or does it mean that one will not vote for cloture on this nomination and thereby keep that nominee from having an up-or-down vote?
I've reached out to the offices of Senators Shaheen, Hassan, and Klobuchar to ask them whether they will indeed vote against cloture and so far have not heard back from any of them. This "60-vote threshold" could be mere messaging (in order to obscure the fact that these senators intend to block an up-or-down vote on Gorsuch), or it could be part of an effort to give themselves some maneuvering room. (Incidentally, I wondered last night if Shaheen and Hassan would move as a pair on Gorsuch, and it seems as though they did.)
It seems as though there are still enough Democrats out there who have not announced their position on Gorsuch that he could still overcome a filibuster. I draw your attention to this passage from Politico:
The five Democratic senators up for reelection next year in states where President Donald Trump won by single digits have all endorsed a filibuster of Gorsuch, while the five facing voters next year in states Trump won by double digits all remain undecided. Gorsuch would have to carry all five of those fence-sitters to overcome a Democratic filibuster — plus his home-state Sen. Michael Bennet (D-Colo.), Maine independent Sen. Angus King, and another more surprising senator.
Senators Tester, McCaskill, Heitkamp, and Donnelly have not ruled out supporting cloture. Delware's Chris Coons seems pretty wary of a nuclear stand-off, and Pat Leahy still seems open to voting for cloture.
Thus, the success of a partisan filibuster against Gorsuch is not yet guaranteed--at least according to public accounts. (My guess is that some Democrats might hold off on announcing whether or not they will vote for cloture on Gorsuch for a little while.)
Some parting thoughts via Jason Willick:
A successful filibuster of Gorsuch would set a different precedent altogether: Namely, that a President can’t fill a Supreme Court vacancy even with a thoroughly mainstream nominee unless his party controls a 60-seat Senate supermajority. In other words, that new justices can only be seated during truly anomalous periods of one-party dominance that sometimes don’t come around for decades. Needless to say, this scenario is impossible to sanction: the Court would wither and its credibility would crumble.
