Fact Check: SCOTUS Nominees Haven’t Typically Required 60 Votes

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Kevin Daley Supreme Court correspondent
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Senate Minority Leader Chuck Schumer will lead a filibuster of Judge Neil Gorsuch’s nomination to the Supreme Court, arguing high court nominees are typically subject to a 60-vote threshold of support.

“If this nominee cannot earn 60 votes, a bar met by each of President Obama’s nominees and George Bush’s last two nominees, the answer isn’t to change the rules — it’s to change the nominee,” he said.

His claim isn’t accurate in several respects.

In the first place, the 60-vote threshold only becomes relevant if the minority party stages a filibuster. Breaking a filibuster, or “moving for cloture” in the parlance of the Senate, requires 60 votes. Neither of President Obama’s appointees faced a filibuster. Nor did President Bush’s first nominee, Chief Justice John Roberts.

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.

Furthermore, as Ed Whelan points out in National Review, only four Supreme Court nominees have been subject to a cloture vote since the Truman administration — and only two of those cloture votes were staged over ideological concerns.

In one instance, a bipartisan group of senators filibustered Justice Abe Fortas’ nomination to succeed Earl Warren as chief justice in 1968 over ethics concerns (concerns which were later vindicated and forced Fortas to resign in disgrace.) A few years later in 1971, a motion to invoke cloture on Justice William Rehnquist’s nomination was filed, but never held, indicating — as Whelan writes — that it was likely lodged as a procedural maneuver, and was not connected to a robust filibuster effort.

The only two filibusters staged over ideological objections — Rehnquist and Alito, as described above — were both organized by Democrats.

Secondly, 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.

Placing Judge Merrick Garland’s nomination to the Supreme Court in this history is difficult. Though it is accurate to say that judicial nominations which reach the floor are not generally subject to filibuster, the Senate GOP’s successful blockade of his appointment is very obviously relevant to this story.

Still, if anything, this history reflects a consistent bipartisan consensus in the post-war period as to how Supreme Court nominations are handled in the post-hearing phase of a confirmation. That history does not match the message Schumer is pushing. A nominee may or may not win the floor vote, but Schumer’s “60-vote threshold” is seldom imposed.

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