Gorsuch Filibuster by the Numbers

According to The Hill, which covers events in Congress, there are currently 38 Democratic Senators who have come out stating they will vote against Neil Gorsuch to serve on the Supreme Court.  Voting against him and supporting a Schumer-led filibuster could be two different things.  Are these 38 Democratic Senators referring to the actual confirmation vote, or are they referring to the cloture vote that would then allow the confirmation vote?  Some statements do not make clear that important distinction.

A perfect example of this is Ben Cardin of Maryland, a reliably blue state.  He is on record as saying he will vote against Gorsuch.  But when asked whether that extends to joining the filibuster attempt, he stated he is taking a wait-and-see approach based upon “accommodations” that can be worked out between McConnell and Schumer.

Based on statements by Senators cited in the article, it is clear that there are 23 definite votes against cloture.  Assuming the 52 Republicans hold firm- and there are no indications they will not-  that starts us with a base of 52-23.  Two Democrats- Heidi Heitkamp of North Dakota and Joe Manchin of West Virginia- have announced they will break ranks and vote for cloture bringing the total to 54 votes.  At this point, the GOP would need six more Democratic Senators to break ranks with Schumer and move the nomination along.

Of the 38 who have announced they would eventually vote against the nomination, Patrick Leahy of Vermont has stated that he is actually leaning against a filibuster.  Another- Debbie Stabenow of Michigan- has not been forthcoming and she remains a huge question mark.  For the sake of argument, let’s just assume Leahy shows some backbone, advances Gorsuch to a confirmation vote under the assumption that the next Supreme Court nominee is the real fight.  In other words, he’s saving his ire for another day in order to stave off invoking the “nuclear option.”  That would bring the total to 55 votes for cloture.

Eight Democratic Senators have not indicated how they will vote on cloture, or the eventual confirmation vote.  Two of them hail from reliably blue states on opposite ends of the country- Robert Menendez of New Jersey and Diane Feinstein of California.  Politics may dictate their decisions.  Feinstein is unsure of whether she will run for reelection, as if that mattered for anyone hailing from California.  With Menendez, there may some disagreement between him and his party on international affairs.  Whether that is enough to sway him into the Schumer camp is not persuasive, so I would put both of them in the “no cloture” camp leaving the GOP still looking for five more votes from the remaining six Democratic Senators.

They are Michael Bennet of Colorado, Chris Coons of Delaware, Joe Donnelly of Indiana, Angus King (technically an independent who caucuses with the Democrats) of Maine, John Tester of Montana, and Mark Warner of Virginia.  Bennet would be the ultimate hypocrite after introducing Gorsuch to the Judiciary Committee and singing his praises.  Coons has stated he doubts Gorsuch will get to 60 votes but gave no indication he would join a filibuster.  My best guess is that he would.  So, let’s assume Bennet votes for cloture and Coons does not.

That means that the GOP needs the remaining four- Donnelly, King, Tester and Warner.  For Donnelly, it may be politics pure and simple.  He is up for reelection in 2018 in a state Trump won by 19 points.  He may suffer for a “no” vote as Indiana voters generally are of the pragmatic conservative type who don’t stand for the backroom political shenanigans- if he’s qualified, confirm him is the philosophy.  I would put Donnelly on the GOP side.

King earlier in March praised Gorsuch as an independent voice on the 10th Circuit Court of Appeals.  Unlike the others, King is an independent himself who falls under less sway than others since he is not technically a “Democrat.”  Schumer exerts less influence over King than he does the others.  Further, he is up for reelection in 2018 in a state that Clinton narrowly won.  Hence, I would give his vote to the GOP side bringing the total to 58.

Tester falls in a similar category- a Democratic Senator hailing from a state that Trump easily won in 2016.  Tester is more pragmatic and has shown streaks of being bipartisan at times.  I liken his stance to the likely stance of Leahy- saving the fight for the next nominee.  Therefore, let’s give him a “yes” vote on cloture leaving only Mark Warner of Virginia.

According to some statements he has made, he seems to be wavering back and forth and is legitimately undecided.  Is he in the Leahy “save it for later” camp?  Warner is a shrewd politician and he may be playing a “what’s in it for me?” game with Schumer.  In the end, I think he’ll pontificate that it was a tortured decision, but that he would vote for cloture, then vote against his nomination.

Prediction: 60-40 for cloture, 54-46 for the nomination.  One final caveat: the next Supreme Court vacancy will be a political battle of epic proportion and may very well come down to the outcome of the 2018 midterm elections and how well, or even if, the GOP can strengthen their majority in the Senate.  Should a vacancy occur in 2017, that would complicate the scenario, but if it occurred in 2018, the GOP could conceivably pull a Garland and delay any action until after the November 2018 elections.