Several Senate Democrats with prominent roles in the judicial selection process have incorrectly claimed that Supreme Court nominees are historically subject to a 60-vote threshold.
The talking point features prominently in Democratic messaging around the nomination.
“I support 60 votes,” said Sen. Amy Klobuchar, a Democrat member of the Senate Committee on the Judiciary. “Sixty votes is in the Senate rules, and that is how we’ve done it, and that’s how we should do it.”
Senate Minority Whip Dick Durbin, another Judiciary Committee Democrat, said that Gorsuch “should have a hearing, and he should meet the voting standard that Supreme Court nominees are held to of 60 votes, a standard that was met by Elena Kagan as well as Sonia Sotomayor, President Obama’s choices.” Durbin made the remarks on MSNBC’s “Morning Joe.”
Their assertion is incorrect in two respects.
In the first place, two of the justices currently on the high court were confirmed with fewer than 60 votes. Justice Samuel Alito was confirmed on a 58-42 vote that largely followed party lines. Justice Clarence Thomas won confirmation on a narrow 52-48 vote.
Secondly, the 60-vote threshold only becomes relevant if Senate Democrats stage a filibuster. Breaking a filibuster, or “moving for cloture” in the parlance of the Senate, requires 60 votes. The last nominee to face a cloture vote was Justice Samuel Alito, who sailed by with 72 votes. 14 senators voted to break the filibuster, but ultimately voted against his confirmation. Before the Alito confirmation, the last nominee to face a filibuster was Chief Justice William Rehnquist in 1986.
In other words, seven of the eight justices currently on the Court did not face cloture votes, meaning they were not subject to the 60-vote threshold to which Democrats are insisting nominees are consistently held.
Gorsuch may face a cloture vote during the confirmation process. A handful of Democratic senators led by Sen. Jeff Merkley have promised a filibuster — and Merkley claims many of his colleagues will support the effort. But it is incorrect to claim such a maneuver is typical of nominations to the high court.
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