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As Filibuster Looms, What's Ahead for Gorsuch's Confirmation Vote?

By Casey C. Sullivan, Esq. on April 03, 2017 | Last updated on March 21, 2019

The Senate Judiciary Committee voted 11 to 9 this morning to advance Judge Neil Gorsuch's nomination to the full Senate. That vote split down party lines, much as the full Senate vote is likely to split as well.

That puts the Senate on track for a messy filibuster showdown and a heated debate in the days ahead. Here's what you can expect.

Democrats Have the Votes Needed to Block Gorsuch, for Now

Senate Republicans had enough votes to get Gorsuch easily through the Judiciary Committee, but they'll need eight Democrats to join their ranks if they want to approve Gorsuch without a filibuster. Under Senate practice, Democrats could prevent the vote from advancing if there are fewer than 60 votes to close the debate. With 41 Democrats having said they will oppose Gorsuch's nomination, the Senate Dems have enough votes to sustain a filibuster against the nominee.

If the Democrats do filibuster, it is likely that the Senate Republicans would exercise what's known as the "nuclear option," changing the Senate precedent so that Supreme Court Justices can be appointed by a simple majority vote.

Senate Republican leader Mitch McConnell does not seem hesitant about "going nuclear." He has pledged that Gorsuch will be confirmed on Friday, before the Senate recesses -- filibuster be damned.

Today Is Just the Beginning -- but Friday Will Likely Be the End

Both a filibuster and exercising the nuclear option would be unprecedented. No nominee for associate justice has been filibustered before -- though one might count the refusal to consider Merrick Garland as a similar tactic -- while simple majority approval of Supreme Court justices would be a major shift in Senate precedent.

For this reason, some Democrats are worried about the impacts of a filibuster. If the nuclear option is exercised, President Trump or any future president will have a much easier shot at getting controversial SCOTUS nominees through the Senate -- and when it comes to preserving the balance of power on the Supreme Court, the biggest battles lay ahead.

Should Democrats successfully filibuster, by voting no on a cloture vote meant to end debate, Republicans would then need to decide whether to change Senate procedure. If they do, a second cloture vote will be required, with only 51 votes needed to pass. Only then will the Senate be able to confirm Gorsuch by a majority vote.

The first cloture vote is expected to take place this Thursday; changes to senate procedure could follow immediately after, if Democrats filibuster. Before a final vote is taken, the Senate would have to engage in 30 more hours of debate, delaying a potential confirmation vote until Friday.

Whatever happens, there's sure to be a contentious fight in the Senate in the days ahead. Senator Patrick Leahy, Democrat of Vermont and the Senate's longest serving member, showed just how harsh things might get. Speaking this morning, he accused the Judiciary Committee of being "nothing more than a partisan rubber stamp" and suggested that Republicans were willing to change the rules for Gorsuch "even if that means forever damaging the United States Senate."

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