Yesterday, in a speech on the Senate floor, New Hampshire Democrat Jeanne Shaheen disavowed any intention of filibustering the nomination of Judge Neil Gorsuch. She stated:
I wanted to respond to my colleague from South Dakota because I think for Senator Thune to come to the floor and castigate Democrats for holding up Judge Gorsuch, who has just been nominated, and for suggesting we are going to filibuster, the fact is, throughout most of last year we saw the Republican majority in this body hold up the nominee of Merrick Garland, President Obama’s nominee. . . .
[T]o suggest that we should not get a fair hearing on the nominee to the Supreme Court — Judge Gorsuch — I think is just not [something that’s] going to be good for the American people. Unlike the Republican majority, I haven’t heard any Democrats saying we don’t think that Judge Gorsuch should get a hearing or that he should get an up-or-down vote. Everybody I have talked to agrees he should get a hearing and an up-or-down vote.
Do these words, which as Shaheen indicates are consistent with what many other Senate Democrats have said, constitute a disavowal of a filibuster? Yes. An up-or-down vote is a vote on whether to confirm (requiring a simple majority), not a vote on whether to cut off debate (which requires 60 yeas).
However, as Ed Whelan notes, Shaheen’s communications director promptly insisted on Twitter that by an “up-or-down vote” the Senator “meant a cloture vote.”
My guess is that Democrats are trying to go on record as being willing to give Gorsuch a hearing and a vote — two things Judge Merrick Garland did not get. I don’t think they intend to commit to a vote on whether to confirm, though that is the clear import of Shaheen’s statement.
I also think that the Democrats want to create the false impression that forcing a vote on cloture isn’t really a filibuster. Rather, they want us to believe, it is an up-or-down vote that requires a super-majority. That’s nonsense, of course, but when, recently, has this stopped the Democrats from making a claim?
The organized left undoubtedly is poring over Judge Gorsuch’s opinions and votes — the same ones that convinced Team Trump he will make a worthy successor to Justice Scalia. At some point pretty soon, I think we’re going to start hearing about certain Gorsuch opinions and votes that are “hostile” to the rights of women and/or this or that minority group, and others that are offensive to additional liberal sensibilities.
At that point, the organized left will publicly demand a filibuster. Democrats who don’t comply will be threatened with a primary challenge, though they will be permitted to make absurd claims that what they’re doing isn’t really a filibuster.
Unfortunately, Shaheen’s statement notwithstanding, it is premature to think there will be no filibuster.