Filibuster! This Week in the Senate
Yesterday, the 41st Democratic senator signaled his intention to filibuster the nomination of Neil Gorsuch to be associate justice of the Supreme Court. Today, Senate Majority Leader Mitch McConnell (R-KY) filed a cloture motion on the nomination. This post describes the timing issues involved in invoking cloture and looks at how this week is likely to go.
Background: The Filibuster and Cloture
In modern practice, a filibuster is a refusal to end debate and vote on a matter pending in the Senate. Senators can only end a filibuster by invoking cloture. Currently, invoking cloture on a Supreme Court nomination requires the support of 3/5 of all senators, which is 60 senators. For executive and lower-court nominations, a simple majority (51 votes) can invoke cloture.
How to End a Filibuster: Cloture Procedure
Senate Rule XXII governs cloture procedure. Before the Senate can vote to invoke cloture, at least 16 senators must file a cloture motion. The Senate then waits two days after a cloture motion is filed before voting on it. On the second day, the Senate will vote on the cloture motion one hour after it convenes (PDF). If 60 senators vote for the motion, then they invoke cloture.
If the cloture vote fails, then debate continues. The Senate majority leader may then move to reconsider the cloture motion. (Recall that this was Senate Democrats' first step in changing the threshold for invoking cloture on executive and lower-court nominees in 2013.)
Successfully invoking cloture doesn't end debate immediately, however. Instead, it merely places time limits on floor debate. Specifically, Rule XXII allows each senator no more than one hour of post-cloture speaking time. In addition, the rule limits total post-cloture debate time to 30 hours.
What Rule XXII Means for This Week
Senator McConnell filed the Gorsuch cloture motion today. Thus, the Senate will vote on cloture one hour after it convenes on Thursday. If Senate Democrats make good on their threats, then the cloture motion will be defeated. At that point, Senator McConnell will move to reconsider the cloture motion and proceed in similar fashion to how Democrats used the "nuclear option" in 2013.
If Senate Republicans invoke cloture, with or without using the "nuclear option," the 30-hour post-cloture debate timer will begin. As Jeffrey noted this morning, McConnell wants to vote on the Gorsuch nomination by Friday of this week. That's because the Senate is scheduled to take a two-week recess starting next week. If cloture is invoked early Thursday, and Democrats insist on using up the full 30 hours of post-cloture debate time, the Senate will have to remain in session throughout Thursday and Friday to be able to vote on Gorsuch on Friday. After all, there will only be around 36 hours between when cloture is invoked Thursday morning and 11:59 P.M. on Friday.
Given the historic significance of the cloture vote on Gorsuch's nomination, Jeffrey and I will be live blogging it when it happens Thursday morning. See here for more.