Senate majority leader Mitch McConnell was asked at his weekly press conference on Tuesday if he was confident Republicans had the votes necessary to confirm Neil Gorsuch to the Supreme Court by eliminating the Senate minority’s ability to filibuster Supreme Court nominees.
“Yes,” McConnell replied tersely.
There was no reason to doubt him. At the weekly Senate GOP luncheon on Tuesday, not a single member of the Republican caucus expressed opposition to striking down the 60-vote hurdle in order to confirm Gorsuch this week. But a few moderate senators—Lisa Murkowski of Alaska, Susan Collins of Maine, and Bob Corker of Tennessee—remained coy in public about their position, and the only lingering question was whether there would be a defection or two among the GOP caucus.
Shortly after 12:30 p.m. on Thursday the answer became official: All 52 Republican senators voted to abolish the filibuster for Supreme Court nominations, while all 48 members of the Democratic caucus voted to keep it. The Senate then voted to advance the Gorsuch nomination to a final confirmation vote on Friday.
As it became increasingly clear that at least 41 Senate Democrats would attempt an unprecedented partisan filibuster of a Supreme Court nominee, one Senate institutionalist after another
“I also pride myself as one who believes in the traditions of the Senate. But it is not the tradition of the Senate to filibuster a U.S. Supreme Court nominee,” Murkowski said in a floor speech Wednesday. “As much and as deeply as I care about bipartisanship in this body, I will not acquiesce to an effort to deny Judge Gorsuch a seat on the Supreme Court.”
The odds that a filibuster of Judge Neil Gorsuch would succeed were always small, but liberal activists demanded that Democrats filibuster him as retribution for the GOP Senate majority’s decision to allow the winner of the 2016 presidential election to pick the successor to late Supreme Court justice Antonin Scalia.
It might have been a smarter strategic play for Senate minority leader Chuck Schumer to let Gorsuch get 60 votes in the hope that the next potential Supreme Court nominee could be successfully filibustered. While the odds of blocking a potentially more controversial nominee were better, they were never great, and therefore Senate Democrats chose to rally their base now instead of holding their fire.
In the long-run, the Senate’s vote on Thursday is likely a victory for constitutionalists. There was never any doubt, after Democrats abolished the filibuster for lower-court nominees and other executive branch nominees in 2013, that they would do the same in order to confirm a liberal activist appointed by a Democratic president. But there remained some question about whether or not a handful of Senate institutionalists within the GOP would allow a filibuster of a constitutionalist nominee and force a Republican president to name a more liberal nominee. Now we know the answer, and it’s an answer that should leave constitutionalists smiling.
