A Filibuster on a Supreme Court Nomination Is So Rare It's Only Worked Once

Though President Donald Trump has named his nominee for the open seat on the Supreme Court — Neil Gorsuch, 10th circuit appellate court judge from Colorado — some Democrats are saying they plan to filibuster the nomination. This week, for example, Sen. Chuck Schumer (writing in Politico) and Sen. Bernie Sanders (speaking on CNN) both said that Gorsuch will have to muster 60 votes in order to be confirmed — in other words, that he will need to be filibuster-proof.

Whether as a type of payback for Republicans’ refusal to approve president Obama’s pick, Merrick Garland, or because they have concerns regarding Gorsuch’s ideological and legal background, if Senate Democrats follow through on that threat it would be, by some counts, only the second-ever SCOTUS nominee filibuster.

That's not to say that nobody has ever come close. According to a report from the Congressional Research Service, cloture was attempted (basically, the supporters of the nomination tried to prove that they had enough votes that a filibuster wouldn't work) four times on Supreme Court nominations, from when the rules changed in 1949 until 2013. It happened against William H. Rehnquist twice (in 1971 and again in 1986) and against Samuel Alito — a move that was supported by then-senator Barack Obama — in 2006. Though the attempt at cloture was rejected in 1971, Rehnquist was confirmed anyway and lawmakers at the time denied a filibuster had happened; in the two other cases, cloture was successfully invoked and prevented a filibuster.