Does Gorsuch have enough votes to get to Supreme Court?
© Victoria Sarno Jordan

Are there enough votes in the Senate to confirm Judge Neil Gorsuch as an associate justice of the Supreme Court? Let us count the ways it can be done.

Under current Senate rules, a 60-vote supermajority is needed to close down filibusters on Supreme Court confirmations, clearing the way for a final up-or-down vote. The Republicans have 52 votes, so can only beat back a filibuster if they can convince eight Democrats to join them.

Getting those votes is possible, but not easy.

There are 10 Democratic senators seeking reelection next year from the following states President Trump carried: West Virginia, Indiana, Missouri, Florida, Ohio, Michigan, Montana, North Dakota, Pennsylvania and Wisconsin. He carried five of these states by margins ranging from 19 to 42 points.

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Democrats from some of these states, and perhaps others, may try splitting the difference by voting with Gorsuch on the filibuster (making Trump supporters happy) and voting against him on final confirmation (making their party's liberal base happy). While this "I voted for him before I voted against him" two-step could assuage both sides, it also risks infuriating both sides.

 

In today's bitterly divided Washington, life gets complicated for senators who cross party lines. Neither party's ideological base wants compromise, especially on the Supreme Court.

Republicans have another way to get Gorsuch through, and they can do it without a single Democratic vote.

It's the alarmingly labeled "nuclear option."

It would require GOP senators to change Senate rules to exempt Supreme Court confirmations from the 60-vote requirement, allowing a simple 51-vote majority, just as Democrats did in 2013 when they changed the rules for all other presidential appointments.

Exercising the nuclear option would invite partisan recrimination that could spill over to other issues, but it could be done as long as Senate Republicans stand united. In fact, the bulldozer-in-chief in the White House — who loves rolling over rules and traditions — has already urged that they do it.

The GOP leadership will likely try to make a deal with their Democratic counterparts: Don't filibuster Gorsuch and we won't use the nuclear option. There are advantages for both sides in such a bargain.

If Gorsuch is confirmed, Senate Democrats can rationalize, he will simply pick another conservative to replace the late Justice Antonin Scalia, and that won't alter the ideological balance of the Court. The real battles would then come when additional seats open up.

The two octogenarians on the court, 83-year old Ruth Bader Ginsberg, a President Clinton appointee, is a liberal, and 80-year old Anthony Kennedy, a President Reagan appointee, is a swing vote. If either retires, the partisan gloves will surely come off. Replacing both with staunch conservatives would produce the historic shift Republicans crave.

Throughout history, the Senate has only directly voted to reject 12 Supreme Court nominations. The most recent was Robert Bork in 1987, a Reagan appointee.

Richard Nixon lost two nominees in a row: Clement Haynsworth and G. Harrold Carswell. One GOP senator, defending Carswell's appointment, famously said, "Even if he is mediocre, there are a lot of mediocre judges and people and lawyers, and they are entitled to a little representation."

Despite the pitched battle, Carswell was defeated by something we don't often see anymore, and that's a truly bipartisan vote: Thirty-eight Democrats and 13 Republicans opposed confirmation and 17 Democrats and 28 Republicans voted for it.

Other nominations have been scuttled by less direct means. Harriet Miers in 2005 and Douglas Ginsberg in 1987 withdrew rather than risk a losing fight. In 1968, a Senate filibuster kept Associate Justice Abe Fortas from being promoted to chief justice.

Last year, the GOP refused to allow a hearing on President Obama's appointment of Merrick Garland, snuffing out his chances.

George Washington put 10 justices on the court, six of which filled new seats when the Constitution went into effect, and President Franklin Roosevelt placed nine justices on the court during his 12 years in office.

The last four presidents — Obama, Bill ClintonWilliam (Bill) Jefferson ClintonThe Hill's Morning Report — Pelosi makes it official: Trump will be impeached Impeachment can't wait Turley: Democrats offering passion over proof in Trump impeachment MORE and the two Bushes — each put two justices on the big bench.

Only Presidents Jimmy Carter, Andrew Johnson, Zachary Taylor and William Henry Harrison never had a chance to put anybody on the court. Looks like President Trump won't be joining that sad little club.

Ron Faucheux, Ph.D., is a political analyst, author and pollster. He publishes LunchtimePolitics.com, a daily newsletter on polls. He also runs Clarus Research Group, a nonpartisan survey research firm.


The views of contributors are their own and not the views of The Hill.