When Sen. Jeanne Shaheen declared Judge Neil Gorsuch deserved “a hearing and an up-or-down vote,” the White House cheered. It looked like the New Hampshire liberal had accidently bucked Democrat leadership and unwittingly cleared a path for Trump’s Supreme Court nominee. But Shaheen isn’t incompetent. She’s calculating.
By conflating cloture and confirmation votes, Shaheen makes it seem like Democrats are ready to give Gorsuch a fair shake. Meanwhile they’re preparing to filibuster his nomination.
That deliberate confusion allows Democrats to seize the higher ground on Gorsuch while shaming Republicans for their treatment of former President Barack Obama’s Supreme Court nominee, Merrick Garland. “Unlike the Republican majority,” Shaheen needled on the Senate floor, “I haven’t heard any Democrats saying we don’t think that Judge Gorsuch should get a hearing or that he should get an up-or-down vote.”
And at first glance, that statement looks more than reasonable. While Republicans refused to play ball with Garland, Shaheen insists that Democrats will give Gorsuch a thumbs up or down. In comparison, it seems fair and altogether generous.
But a closer examination shows that Shaheen has glossed over an important parliamentary distinction. When the White House praised Shaheen for her apparent bipartisan spirit, she quietly clarified on Twitter that she only “meant a cloture vote.”
Though quickly overshadowed by other news, the exchange reveals a distinction that will loom large in the coming Supreme Court struggle.
For those uninitiated in Senate procedure, it’s easy to confuse votes on cloture and confirmation of judicial nominees. While the first is a vote to end debate and requires a supermajority to achieve, the second is a vote to approve a nominee and only requires a simple majority.
What’s this mean for Gorsuch? True to her word, the nominee will get the hearing that Garland never enjoyed. The Senate will consider his nomination. And sure, there will even be a vote. But it won’t be up or down. Instead, Senate Republicans will force a vote on cloture and with only 52 seats, Republicans will never gain the 60 they need to end debate.
By redefining a cloture vote as an “up-or-down” decision, Shaheen has captured the high ground and effectively camouflaged future filibuster from public opinion.
Philip Wegmann is a commentary writer for the Washington Examiner.
