Republican Senate Majority Leader Mitch McConnell said on Saturday that he would move to delay the Senate’s return to October 19 after President Donald Trump and three Republican senators announced they had tested positive for COVID-19.
But the pronouncement came with a caveat: the Senate Judiciary Committee’s confirmation hearings for Trump Supreme Court pick Amy Coney Barrett would not be disrupted — they will begin on October 12 as planned.
“I’ve got a job to do and I’m pressing on,” Judiciary Committee Chairman Lindsey Graham said during a Saturday night debate with his Democratic challenger in South Carolina.
Democrats have vociferously opposed Barrett’s confirmation, saying she would vote to overturn the Affordable Care Act and would not respect judicial precedent as it relates to abortion access. Republicans, seeing an opening to cement a conservative court majority after the death of Justice Ruth Bader Ginsburg, a liberal icon, have been aiming for a fast-track confirmation ahead of the November election.
Barrett’s nomination was celebrated just last weekend at the White House in what is increasingly being seen as a likely COVID-19 super-spreader event. A number of those who attended the ceremony have since confirmed they are infected with the virus, including the president, first lady Melania Trump, Judiciary Committee Sens. Thom Tillis and Mike Lee, New Jersey Gov. Chris Christie, Trump adviser Kellyanne Conway and the president of Notre Dame University, where Barrett taught law before Trump nominated her to a federal appeals court.
Republican Sen. Ron Johnson was not at the White House event but he also announced on Saturday he has tested positive for the virus.
Democrats immediately objected to sticking with the confirmation plan, saying that moving forward puts their safety, and that of other Senate staffers, at risk. But there is little they can do to postpone or derail Barrett’s committee confirmation hearings, experts said, though it may get increasingly difficult for McConnell to hold a vote in the full Senate.
“It’s kind of the wild, Wild West,” Democratic strategist Jim Manley said of the process. He was previously a senior aide to former Senate Majority Leader Harry Reid.
The Judiciary Committee needs a quorum, in this case seven senators to conduct business and nine, including two Democrats, to “transact business,” according to its rules. Reporting out a nomination requires a majority to be present. There are 12 Republicans and 10 Democrats on the panel and no Democrats are expected to participate. Republicans, though, have successfully changed or suspended rules in other committees in order to send Trump nominees to the Senate for a vote.
Judiciary Committee Sens. Tillis and Lee have said they will quarantine only until October 12 when the hearings begin, as have committee members Sens. Ben Sasse and Ted Cruz, who have not tested positive but are isolating at home due to close interaction with infected senators.
Republican Sen. Tom Cotton, who is not on the Judiciary Committee, offered a preview on Sunday of how the panel may try to reach a quorum, telling Fox News that come October 12, senators would be participating either “in person or virtually.”
Manley said there is no precedent for a committee to “report out” legislation or a Supreme Court nominee using virtual meetings and votes but noted that panels largely set their own rules and it will boil down to the interpretation of “what constitutes being ‘present’ or not.”
But “there is no absentee voting in the [full] Senate,” Manley added, “and we don’t know how many members are going to get sick.”
Barrett’s confirmation would require 51 votes in the Senate, which currently has 53 Republicans, 47 Democrats and two independents that caucus with the latter. Two Republicans — Sens. Lisa Murkowski and Susan Collins — had already said they do not support moving ahead on a Supreme Court confirmation so close to an election. Republicans could only lose two more and still confirm Barrett, with Vice President Mike Pence as the tie-breaker.
Cotton noted on Sunday that there is a “long and venerable tradition of ill or medically infirm senators being wheeled in to cast critical votes.”
There are at least three scenarios in which Republicans may find it challenging to confirm Barrett ahead of the November 3 election.
In the first, if there are enough Republican senators absent or opposed to the process that they cannot reach the 51-senator quorum needed to advance to a vote, the process could stall. In this case, the vice president, considered the president of the Senate, cannot cast a tie-breaking vote.
If a quorum is reached, Republicans could still find themselves short of the 51 votes they need to confirm Barrett, even with Pence’s vote.
The final complicating wrinkle could come from Trump being treated at Walter Reed Medical Center. If Trump’s situation worsens, Pence may need to serve in Trump’s stead and therefore not be able to act as a Senate tie breaker.
“If he’s acting as president, the president is not the president of the Senate,” said Professor Justin Levitt, a constitutional law expert at Loyola Marymount University in Los Angeles.
Levitt predicted that McConnell would only move forward with Barrett’s confirmation if they had 51 Republican senators able to cast votes and if not, McConnell will wait until he does, possibly in the lame-duck session between the election and the seating of the next Congress in January.
“The Senate is not equipped to handle a pandemic,” Manley said. “I refuse to believe that Republicans are set on voting with their members sick with a highly contagious disease.”