Unless something changes in the next few hours, it appears that at least 41 Democrats will attempt to block the nomination of Neil Gorsuch on the Senate floor, potentially leading Republicans to trigger the so-called "nuclear option" and vote to kill the filibuster for Supreme Court nominees.
That number is key in Congress' 100-member upper chamber, where 60 votes are required to do pretty much anything (except appoint federal judges to courts other than the Supreme Court, but more on that in a minute).
If Republicans can't get 60 votes to close off debate on Gorsuch's nomination, Democrats would be able to filibuster and grind the Senate to a halt until Gorsuch is withdrawn from the confirmation process. The 60 vote threshold in the Senate is a somewhat unique element in parliamentary bodies around the world and one of the things that makes the U.S. Senate "the world's most deliberative body."
It's also something of an illusion, just like all the other rules that govern how Congress operates. That's because all the rules can be rewritten with a simple majority vote—yes, even rules that say a super-majority is needed for this or that.
The filibuster has survived for so long purely because of a bipartisan, institutional belief that it matters. Any group of 51 senators (or fewer, in the days when the nation had fewer states) could have killed the filibuster at any time, but that great protection against majoritarianism carries on, counter-intuitively, because no majority has ever sought to kill it—probably because all majorities eventually become minorities, and no minority has ever made the mistake of goading the majority into killing it, as the Democrats appear willing to do this week.
Still, this isn't the first time the filibuster has been weakened substantially. Democrats struck the first blow against the filibuster in 2013 by rewriting the rules so the 60-vote threshold no longer applied to all federal court appointments except appointments to the Supreme Court.
It's widely assumed that if Republicans can't get eight Democrats to vote in favor of cloture on Gorsuch this week, Senate Majority Leader Mitch McConnell (R-Kentucky) will trigger the so-called "nuclear option" and abolish the filibuster for Supreme Court nominees.
Here's how it would go down—with Republicans following the same path as Democrats did in 2013.
Step 1: The Senate will vote to invoke "cloture," which ends debate on whatever issue is before the chamber. Under Rule XXII, the Senate requires 60 votes to approve cloture and end a debate.
Step 2: Assuming cloture fails (if it succeed, no nuclear option would be necessary), a Republican senator will move to reconsider—aka, revote—on the cloture motion. After it fails a second time, Majority Leader Mitch McConnell (R-Kentucky) will raise a point of order declaring that all Supreme Court nominees can be approved with a simple majority vote.
Step 3: The Senate President pro tempore gets to rule on whether points of order are approved (that is, in line with the Senate's rules) or overruled, based on Senate rules and precedent. In this case, Senate President Orrin Hatch (R-Utah) would presumably rule that McConnell's point of order is overruled, because Senate rules and precedent say cloture is required for Supreme Court nominees.
Step 4: Here's where the change really happens. McConnell gets overruled, but he's allowed under Senate rules to appeal the ruling of the Senate president. If he wants to invoke the "nuclear option," he will appeal Hatch's decision, which triggers an immediate vote (meaning there can be no debate before the vote) on Hatch's ruling.
Step 5: The vote on the Senate president's ruling is a simple majority vote. If a majority of the Senate votes "nay" on Hatch's interpretation of the Senate rules, a new precedent is set to guide future votes on U.S. Supreme Court nominees—namely, a precedent saying cloture is not required.
Step 6: Democrats will likely appeal that vote, with Senate Minority Leader Chuck Schumer (D-New York) raising a point of order and asking the President pro tempore if cloture is required for U.S. Supreme Court nominees.
Step 7: Hatch will cite the just-taken vote as a new Senate precedent that the threshold for approving Supreme Court nominees is a simple majority. He will overrule Schumer's point of order.
Step 8: Schumer can appeal this ruling and call for a vote on the Senate President's ruling. Just like what happened in Step 4, this triggers an immediate vote.
Step 9: The Republican majority will defeat Schumer's appeal, and Hatch's interpretation of the rules (the new interpretation, which says only a simple majority is needed) will be confirmed.
Step 10: Finally, after all the parliamentary shenanigans, the Senate will return to the question of Gorsuch's nomination. With the new precedent in place, a simple majority vote will approve Gorsuch's nominee and make him the 113th member of the U.S. Supreme Court.
As Peter Suderman wrote in 2013 when then-Senate Majority Leader Harry Reid (D-Nevada) did this, the Senate is basically a very elaborate, expensive version of Calvinball. That's the fictional sport from the comic strip Calvin and Hobbes played and invented by the two title characters. There are a slew of complicated rules associated with the game, most of which are arbitrary and some of which are utterly nutty, but the most important thing to know about the game is that any of the rules can be changed at any time, usually by any player, except perhaps when there are rules prohibiting some players from making those changes.
"It's a game, in other words, with an awful lot of complex and arcane rules that tend to evolve over time and are generally determined by the players themselves—rules that usually have to be obeyed, except when they don't," Suderman wrote. "This is not an exact description of how the Senate works, but it's close enough. And it's a reasonably useful context in which to understand the most recent squabble over the filibuster."
That's still just as true today.
One final note: it's possible that eight Democrats could decide against filibustering Gorsuch's nomination, even if they intend to vote against him. That would give Republican the margin they need to enact cloture and proceed to the final vote, even if the margin in support of Gorsuch falls below the 60-vote threshold. That's what happened in 1991 when Justice Clarence Thomas was confirmed by the Senate with a 52-48 vote, after Democrats withdrew their petition to force a cloture vote.
A similar move with Gorsuch's nomination would preserve the filibuster for Supreme Court nominees, a tool both parties might someday wish they still had at their disposal.