Live Blog: The Gorsuch Cloture Vote in the Senate (Ended)

Scroll to the bottom of this post to read the archive of our live blog.

Starting at 9:00 AM (Central) on April 6, 2017, Jeffrey and I live blogged the Gorsuch cloture vote in the Senate. As we expected, Senate Republicans used a technique commonly referred to as the "nuclear option" to break a Democratic filibuster. For background, here are three posts that Jeffrey and I wrote on this subject:

Keep reading to find out what we were watching for during our coverage.

1. Will Democrats Filibuster?

As of earlier this week, more than 40 Senate Democrats have expressed an intention to filibuster the Gorsuch nomination. That's enough to defeat the Gorsuch cloture vote. However, some may change their mind by the time they vote tomorrow morning. We probably won't know until then.

[April 6, 2017 Update: Senate Democrats did filibuster. The vote on cloture was 55 yea, 45 no. The 45 noes were sufficient to defeat the cloture motion.]

2. Will Republicans Go Nuclear?

Senate Majority Leader Mitch McConnell (R-KY) claims he has the votes to use the "nuclear option" to break a Democratic filibuster. To do so, Republicans will need 51 votes. There are 52 Republican senators. Only a few Democrats have said they'll support Gorsuch. But not every senator who supports Gorsuch and opposes a filibuster may be comfortable supporting the "nuclear option." Accordingly, Senate Republicans don't have much wiggle room for senators to get cold feet. We'll see by tomorrow if any do.

[April 6, 2017 Update: Republicans did, indeed, go nuclear.]

3. How Will Republicans Go Nuclear?

Assuming Republicans have the necessary votes tomorrow to use the "nuclear option," how, precisely, will they do so? Jeffrey and I outlined one method that they could use in the first post linked above: follow the process Democrats used in 2013. Given that McConnell views using the "nuclear option" for Gorsuch as a way to get even with Senate Democrats for using it in 2013, this may be an especially attractive method for him to employ.

However, there is an alternative method available. This alternative method, which was summarized at SCOTUSblog yesterday, would involve the chair sustaining a point of order that cloture on Supreme Court nominations requires only a majority. When Democrats appeal to the full Senate, McConnell can move to table the appeal, and a majority of the Senate can do so.

[April 6, 2017 Update: McConnell followed Democrats' example almost exactly. The one significant difference was in how he framed his point of order. In 2013, the Democrats framed their point of order as an interpretation of Senate Rule XXII. In contrast, McConnell framed his point of order this morning as an interpretation of the precedent established by Democrats in 2013.]

4. Will Mike Pence Have to Intervene on the Gorsuch Cloture Vote?

As vice president, Mike Pence is the president of the Senate. However, he only gets to vote when the Senate is equally divided on a question. Given the narrow margins that exist for employing the "nuclear option," the vote on that may end up split 50-50. In that case, Vice President Pence will have the opportunity to step in and cast the deciding vote.

[April 6, 2017 Update: Pence's tie-breaking vote was not needed. The vote on "going nuclear" was 52 to 48, with Republicans winning.]

Tomorrow at 9:00, you'll find the live blog right below this post, after the sharing icons. I'll update this post if anything changes before then.

April 5, 2017 Update: It appears that the Senate will convene tomorrow at 10:00 AM Eastern, and the cloture vote should occur around 11:00 AM Eastern. Accordingly, we are pushing back the live blog until 9:00 AM Central. Please tune in then.

April 6, 2017 9:17 PM Update: The Democrats are not insisting on the full 30 hours of post-cloture debate. The Senate will vote on confirming Neil Gorsuch to the Supreme Court at around 11:30 AM tomorrow (PDF).

Good morning. Jeffrey and I are waiting for the Senate to convene, which should happen any minute now.

We don’t expect much action during the first hour. The cloture vote is scheduled for 11 AM Eastern.

According to the Senate Executive Calendar (PDF), the first hour (following McConnell’s remarks) will be split between Senator Grassley (R-IA) and Senator Feinstein (D-CA). They are the chairman and ranking member of the Senate Judiciary Committee, respectively.

Senate Majority Leader McConnell (R-KY) is speaking now.

#trivia – The first successful filibuster of a Supreme Court nominee was the filibuster of Abe Fortas in 1968. President Lyndon Johnson had nominated Fortas, then an associate justice on the Supreme Court, to be chief justice. 24 Republican senators and 19 southern Democrats voted against cloture.

#schedule: According to the Senate Executive Calendar (PDF), the first hour (following McConnell’s remarks) will be split between Senator Grassley (R-IA) and Senator Feinstein (D-CA). They are the chairman and ranking member of the Senate Judiciary Committee, respectively.

McConnell is recounting the history of obstructing nominations, from the Republican perspective. Spoiler: It’s the Democrats’ fault.

#mcconnell: Democrats using nuclear option in 2013 not in response to rampant obstruction.

#mcconnell: Republicans protested when then-Senate Majority Leader Reid (D-NV) proposed to file cloture on the nomination of Elena Kagan to the Supreme Court. They didn’t want even the hint of a filibuster.

#mcconnell: Re: Garland, Senate exercised its advice-and-consent role by withholding consent.

(Recall that Garland was not provided so much as a hearing after he was nominated in early 2016.)

#mcconnell: This will be the first–and last–partisan filibuster of a Supreme Court nomination.

#trivia – Jonathan H. Adler wrote in March of 2013 that through President Obama’s first term, 71% of his appellate nominees and 80% of his district nominations were confirmed. This was partly due to the Obama administration’s slow movement on nominations.

#mcconnell: Few outside of Manhattan and San Francisco believe RBG is in the mainstream, but Neil Gorsuch is not.

McConnell has concluded.

#schedule: The time from now until 9:45 AM will be equally divided between Grassley and Feinstein.

McConnell issued an ultimatum of sorts to the Democratic members to not let the nuclear option be used.

#schedule: Then, Senator Schumer (D-NY) will speak.

Tensions are already high on the Senate floor. Grassley just snapped at Senator Durbin (D-IL).

#schedule: According to the Senate Executive Calendar (PDF), the first hour (following McConnell’s remarks) will be split between Senator Grassley (R-IA) and Senator Feinstein (D-CA). They are the chairman and ranking member of the Senate Judiciary Committee, respectively.

#grassley: Democrats have been looking for a justification for their pre-planned filibuster.

If you’d like to watch along with us, you can do so here:

#grassley: Democrats’ real reason for opposition is Trump, not Gorsuch himself. This will likely be a common theme with the Republican speakers.

#grassley: For Democrats, nomination process a desperate attempt to retell the same preordained narrative.

Durbin is speaking now, as Feinstein’s designee.

#durbin: Senate had never failed to give a hearing and a vote on Supreme Court nominee until Republicans did it with Garland.

#durbin: 79 Obama judicial nominees were blocked by Republican obstruction.

#durbin reciting Democrats’ criticisms of “two or three” Gorsuch opinions.

First up, the “frozen truck driver” case.

Next, Hobby Lobby.

Next, K State professor fired while receiving medical treatment.

#durbin: The nuclear option was used when McConnell blocked Merrick Garland. This is just the fallout.

Senate Minority Leader Chuck Schumer (D-NY) is up next.

Now Schumer’s going over history.

#schumer: Blame on both sides, but Republicans bear more of it.

#schumer: Last time a Republican-controlled Senate confirmed a Democratic president’s SCOTUS nominee was 1895.

If you’re just joining us, we expect the cloture vote to occur at roughly 10 AM Central.

#schumer: What Republicans did to Garland worse than a filibuster.

#schumer: likely that many of his colleagues wanted to vote for Gorsuch at first.

#schumer: “Mood of our caucus shifted” when Gorsuch gave vague answers and judicial platitudes.

#schumer: Gorsuch sides “instinctively” with corporations over everyday citizens.

#schumer: Gorsuch has not shown independence from Trump

#schumer: NYT says Gorsuch would be second-most conservative member of SCOTUS; WaPo says most conservative.

#schumer: Answer is not to change the rules. It’s to change the nominee.

#schumer: Democrats and Republicans caught in such a bunker mentality that they’re just talking past each other.

#schumer: Level of distrust in Senate is such that Republicans and Democrats can’t even sit down and talk.

#schumer: McConnell was intent from day one to change the rules if he didn’t get his way.

#schumer: History will put responsibility for SCOTUS nuclear option on Republicans.

#schumer: Post-nuclear option, “cooling saucer of the Senate will get considerably hotter.”

#schumer: Post-nuclear option, more 5-4 decisions; SCOTUS viewed as political body.

#schumer: trust in the rule of law will suffer if Gorsuch is appointed to SCOTUS

#schumer: instead of Senate forcing senators to change, senators are intent on changing the Senate.

#schumer: At least McConnell and I agree the legislative filibuster should remain.

Cloture motion is up.

Senate is now conducting a roll call vote on cloture

We’re about halfway through the roll call vote on cloture now.

Thus far, 21 ayes, 28 noes

Make that 30 noes.

Still about 7 minutes left. Several senators have yet to vote

“Several” as in 44.

But Democrats are only eight votes away from defeating cloture.

4 minutes remaining for roll call

Senate Democrats have defeated cloture on the Gorsuch nomination.

We’re still waiting for the roll call vote to end. Currently, it stands at 39 aye, 41 no. That’s enough noes to defeat cloture, as I noted earlier.

51-44 now

There are now 44 noes, which is where we expect them to top out.

still waiting on 4 more votes

I like how the clerk pauses before announcing a senator’s vote, like she’s trying to leave us in suspense.

We’re waiting on the last vote now.

Last vote is in. Total on cloture: 55 aye, 45 no.

McConnell voted no, which allows him to move to reconsider.

Which he is expected to do as soon as the final tally is announced

McConnell moves to reconsider.

Roll call vote for the motion to reconsider is now underway

For this motion to be adopted, 51 senators must vote in the affirmative

If the motion to reconsider passes, McConnell will raise a point of order that cloture on Supreme Court nominations requires only a majority.

Reminder: Senate Rule XXII requires 3/5 vote to invoke cloture on nominations.

Currently, the vote on reconsideration stands at 46 aye, 41 no.

McConnell’s motion to reconsider passes.

Still waiting for the vote on the motion to reconsider cloture to conclude. Right now, it’s 55 aye, 43 no.

Final vote on reconsideration: 55 aye, 45 no.

Senator Schumer makes a parliamentary inquiry.

That’s the same delaying tactic McConnell used in 2013.

Schumer moves to postpone the vote on Gorsuch until Monday, April 24th.

Now we’re in another roll call vote.

This roll call vote is expected to fail, which will likely lead to some more parliamentary inquiries from Sen. Schumer and, eventually, a point of order from Sen. McConnell that will be used to trigger the nuclear option

This is similar to McConnell’s motion to adjourn when Democrats used the nuclear option in 2013. For more on that, see our post from March 28th.

Senator Schumer’s postponement motion has failed, but we’re still waiting on four votes.

Final vote on Schumer’s motion to postpone the Gorsuch vote until April 24th: 48 aye, 52 no.

Nuclear option on the way

McConnell raises a point of order that Supreme Court nominations require only a majority to invoke cloture.

President pro tempore rejects McConnell’s point of order.

McConnell appeals the ruling of the chair to the full Senate.

Now Schumer is making more parliamentary inquiries.

Schumer moves to adjourn until 5 PM.

Yet another roll call vote.

This too will likely fail

Interesting approach by McConnell in framing his point of order, by the way: He claimed that the Democrats’ use of the nuclear option in 2013 also applies to Supreme Court nominees.

He could have instead framed it as an interpretation of Senate Rule XXII, as the Democrats did in 2013.

Upon the completion of this roll call vote, there may be a few more parliamentary inquiries by Schumer. If not, or after Schumer is finished making said inquiries, McConnell’s motion to appeal the decision of the chair will be voted on.

And on McConnell’s appeal, a simple majority will suffice to overturn the ruling of the chair.

On the appeal, the question will be, “Shall the decision of the chair stand as the judgment of the Senate?” So, Democrats will be voting aye, and Republicans will be voting no.

Schumer’s motion to adjourn until 5 PM has failed.

We’re waiting on three more votes.

Final vote on Schumer’s motion to adjourn: 48 aye, 52 no.

The Senate is now voting on McConnell’s appeal of the chair’s decision.

If at least 51 senators vote no, then that’s the ballgame. Republicans will then be able to confirm Gorsuch by majority vote after 30 hours of debate.

Though Schumer will likely raise a point of order that invoking cloture on Gorsuch still requires 60 votes. When the chair rules against him under the newly established precedent, he will appeal that decision to the Senate.

It would also set a new precedent for future SCOTUS nominees.

We are about halfway through the roll call vote on McConnell’s appeal.

Awaiting the official count

Still waiting for the vote to conclude

The Republicans have overturned the decision of the chair that invoking cloture on Supreme Court nominees requires 60 votes.

That’s the nuclear option. Republicans will be able to invoke cloture on Gorsuch with a simple majority.

Final vote: 48 aye, 52 no.

Now one more cloture vote

I’m surprised Schumer didn’t repeat McConnell’s 2013 tactic of raising a point of order and appealing. We’re into the cloture vote on Gorsuch now.

It would have been pointless, of course, but it would have kept up the symmetry with 2013.

It is likely that this vote will pass along party lines. If it does, there will be 30 more hours of debate after which the nomination will be voted on, and #neilgorsuch will likely be confirmed to the #scotus.

That final vote will take place late tomorrow night.

A few Democrats said they would vote for cloture, and did so earlier today. The question now is whether they’ll change their votes in this post-nuclear option cloture vote.

The vote stands at 49 ayes – 40 nays

Senate Republicans have invoked cloture on the nomination of Neil Gorsuch to the Supreme Court by a simple majority vote.

Waiting for one last vote to come in.

Final vote on cloture: 55 aye, 45 no. Cloture is invoked by a simple majority.

The end. Thanks to those of you who stuck with us these last three hours.

Now, the Senate begins a period of 30 hours of post-cloture debate. They’ll need to fit that 30 hours into the next 35 to be able to vote for Gorsuch before midnight Friday.

If they can’t, the confirmation will likely have to wait until the Senate returns from their 2 week recess that starts next week.

Tune into our blog for more discussion on this and other topics in the future.