Does Gorsuch Need 60 Votes to Be Confirmed?

As the Senate's confirmation vote on Neil Gorsuch approaches, several Senate Democrats (and Bernie Sanders) have argued that there is a 60-vote standard for confirming Supreme Court nominees:

  • Chuck Schumer (D-NY): "If [Gorsuch] cannot meet the same standard [as] President Obama’s nominee, 60 votes in the Senate, then the problem lies not with the Senate but with the nominee."
  • Richard Durbin (D-IL): Gorsuch "should meet the voting standard that Supreme Court nominees are held to of 60 votes."
  • Tammy Baldwin (D-WI): "[T]he standard which every other Supreme Court nominee has had to meet" is "earning 60 bipartisan votes in the United States Senate."
  • Maggie Hassan (D-NH): There is a "traditional 60-vote threshold for confirming Supreme Court nominees."
  • Bernie Sanders (I-VT): "It’s not a question of filibuster. I am for the Republicans obeying the rules that currently exist, and not changing those rules. And the rules right now, for good reasons, are 60 votes."

This talking point is false. It conflates a vote on cloture with a vote to confirm and misrepresents a history of Senate deference to the president as a history of presidential deference to the Senate.

Cloture vs. Confirmation

The Democrats' claim that there is a 60-vote standard in confirming Supreme Court justices conflates a vote on invoking cloture and a vote on confirmation. As the fact-checking websites I linked to above have pointed out, while a cloture vote requires a 3/5 majority (60 votes), a confirmation vote requires only a simple majority (51 votes).

This isn't a trivial distinction. Supporting cloture isn't the same as supporting the nominee's confirmation. The cloture and confirmation votes for Samuel Alito in 2006 illustrate this distinction well. That year, 25 Democratic senators voted against cloture on (i.e., voted to filibuster) Alito's nomination. Of the 72 senators who voted for cloture (i.e., against the filibuster), 14 voted against confirming Alito. He was confirmed by a vote of 58 to 42. Alito never had the support of 60 senators, even though 72 senators supported proceeding to a final vote on his nomination.

Deference to the Senate vs. Deference to the President

The second problem with the 60-vote-standard claim is that it misrepresents a history of Senate deference to the president as one of presidential deference to the Senate. To be sure, a look at the historical record reveals that on average, nominees to the Supreme Court that have been confirmed over the past century (excluding the 19 confirmed by voice vote) have received 84% support in the Senate. A casual observer might interpret this fact as support for the supposed 60-vote standard, and may even agree with Senator Schumer that the proper solution to a Democratic filibuster is "to change the nominee," not the rules.

But this is the exact opposite of traditional Senate practice. As explained by Professor Mark Silverstein in Judicious Choices, for most of the 20th century, senators deferred to the president's choice of nominee. This changed with the successful bipartisan filibuster of Abe Fortas in 1968, and especially with the defeat of Robert Bork in 1987. Yet, even in 1987 the idea that senators should independently assess a nominee's judicial philosophy was a point of controversy. And in 1993 and 1994, when a substantial majority of Republicans voted to confirm Ruth Bader Ginsburg and Stephen Breyer to the Supreme Court, prominent Republicans explained their support, in part, by pointing to the deference owed to a president's selection.

In short, when the Democrats claim that history supports the supposed 60-vote standard for Supreme Court nominees, they are misrepresenting what the historical record reveals. The high level of support traditionally received by Supreme Court nominees was the result of Senate deference to the president, not the other way around.