Could the Coronavirus Stop Amy Coney Barrett's Confirmation?
By Jane Mayer, The New Yorker
06 October 20
Ten days ago, Amy Coney Barrett's path to the Supreme Court seemed almost as
rosy as the famous White House garden in which President Donald Trump
nominated her. Senate Majority Leader Mitch McConnell seemed sure that he
had the votes necessary to get her confirmed, regardless of the looming
November 3rd election.
But, in a plot twist that would likely be rejected in Hollywood as too
contrived to be believable, the White House ceremony, on September 26th, in
which Trump announced Barrett's nomination may have spread the coronavirus
to enough Republican senators to imperil her confirmation. Some hundred and
fifty people attended the festive outdoor ceremony, including five members
of the Senate Judiciary Committee. Virtually all of them ignored the Trump
Administration's own public-health guidelines by sitting shoulder to
shoulder and, for the most part, without masks. Many of the guests also
mingled inside the White House, again without masks.
A week later, the President had been hospitalized with COVID-19, which had
also infected the First Lady, several top White House advisers, and, more
crucially for Barrett's confirmation vote, two Republican Senators who are
members of the Judiciary Committee: Thom Tillis, of North Carolina, and Mike
Lee, of Utah. (Senator Ron Johnson, a Republican of Wisconsin, also tested
positive for the coronavirus last week, but he is not a member of the
Judiciary Committee.) Two other Republican Judiciary Committee members-Ben
Sasse, of Nebraska, and Ted Cruz, of Texas-said that they had tested
negative but, on medical advice, were self-quarantining.
Few if any would bet against McConnell, given the Republicans' three-vote
majority in the Senate and his lifelong devotion to winning at any cost. The
Senate's arcane rules give an overwhelming procedural advantage to the
Majority Leader. And McConnell can be counted on to use every parliamentary
trick in the book. Further, he has staked his legacy on stocking the Supreme
Court with conservative Justices, and the chance to fill the late liberal
Justice Ruth Bader Ginsburg's seat with her philosophical opposite has given
him the political opportunity of a lifetime.
But, despite all this, several experts say that Barrett's path has grown
narrower. The Republicans still hold almost every procedural advantage, but
they are up against two forces of nature: time and COVID-19.
On Saturday, McConnell announced that, for the safety of its members, the
Senate would not meet this week, as had been originally planned. The recess,
however, did not extend to Barrett's confirmation process. The Senate
Judiciary Committee, McConnell said, would continue to push ahead with
hearings, even if it meant that some members had to participate virtually,
rather than in person.
Senator Chuck Schumer, the Minority Leader, objected, arguing that it was
"too dangerous to have the Senate in session" and "also too dangerous for
committee hearings to continue." In a statement released on Monday morning,
he demanded that all senators on the Judiciary Committee, as well as
relevant staff members, test negative for COVID-19 on two consecutive days
before participating in any hearing. If Senator Lindsey Graham, the chairman
of the Judiciary Committee, and McConnell don't implement "a thorough
testing approach," Schumer wrote, it would be "intentionally reckless, and
could reasonably lead some to wonder if Chairman Graham and Leader McConnell
may not want to know the results because it could delay this already
illegitimate process."
For now, the Republicans are ignoring the Democrats' objections and pressing
forward at breakneck speed, regardless of past statements from McConnell
defending intransigence and inaction in the Senate. He famously obstructed
the confirmation of President Obama's Supreme Court nominee Merrick Garland,
in 2016, arguing that the seat should not be filled because only nine months
remained before the election. Until now, McConnell has fashioned himself as
an institutionalist, proclaiming, in a 2016 memoir, that the Senate should
be "allowed to work the way it was designed to-meaning a place where nothing
is decided without a good dose of deliberation and debate, as well as input
from both the majority and minority parties."
A glance at the timeline explains why McConnell is in such a rush. Were
Graham to stick to the original schedule, the Senate Judiciary Committee
would hold four days of public hearings, beginning the week of October 12th.
Once those hearings end, any member of the committee can ask for a
"holdover" for an additional week before the committee votes. If the
Democrats exercise that option, the committee vote would then be pushed back
until around October 22nd. After that, McConnell would face additional
hurdles on the Senate floor, which likely would delay the final confirmation
vote to the very end of October, conceivably even Halloween. Any slippage,
and it would collide unacceptably with the election on November 3rd,
delaying the vote until the so-called lame-duck session.
Because of the time crunch, experts say that the Democrats could try to use
a parliamentary ploy to throw a wrench in the works. The Democratic members
of the Senate Judiciary Committee could demand a quorum vote. No nomination
can be advanced to the Senate floor without a majority of the twenty-two
members of the committee, twelve of whom are currently Republicans, being
physically present to vote. The math is a bit complicated, but if all but
one of the ten Democrats "took a walk," as the move is called, leaving just
a single Democratic member to demand the quorum vote, and at least two
Republicans continue to be absent owing to the coronavirus, there wouldn't
be enough members present to provide the quorum. In theory, the nominee
could stay bottled up in the Senate Judiciary Committee until the numbers
change. One Democratic Senate aide familiar with the process told me, "It's
almost a battle of attendance."
But all of this would depend on an interpretation of the Senate Judiciary
Committee's rules. As written, they say that no nomination can move forward
"unless a majority of the committee is actually present." But does "actually
present" mean the members have to be present in the flesh, as opposed to
remotely? Could infected senators participate while wearing personal
protective equipment? In the past, "actually present" has meant physically
in the room. But, during the pandemic, the standing rules have been altered
to enable remote participation for much of the Senate's business. Research
provided by Senate Republicans shows that, since the spring, the Judiciary
Committee has held twenty-one hearings in which there was some virtual
participation, including hearings, in May, on Justin Walker's nomination to
the U.S. Court of Appeals. But in none of those instances did Democrats
demand a quorum vote, or report out a bill or nomination, situations that
traditionally have required the members' physical presence.
Thom Tillis and Mike Lee, who have tested positive for the coronavirus, and
Ben Sasse and Ted Cruz, who are observing self-imposed quarantines, have
said that they expect to be able to participate in an in-person committee
vote by October 22nd. If, however, Senators Tillis and Lee are still absent
when the committee needs to send the nomination forward, or if other
Republican members of the committee fall ill, it's conceivable that the
Democrats on the committee will call for a quorum, and delay Barrett's
nomination-perhaps decisively.
Faced with such a roadblock, McConnell might find a way to sidestep the
Senate Judiciary Committee entirely. He could file a motion to discharge,
and send the nomination directly to the Senate floor. But this would break
with both precedent and the Senate's norms. If the oversight function of the
committee of jurisdiction was simply shoved aside when it was deemed
inconvenient, during a confirmation of a lifetime appointee to the country's
highest court, it could very well damage the legitimacy of the whole
process. It surely would unleash a huge outcry. Short of that, the
Republicans on the committee could always try to change the rules. Or, if
two Republican members of the Judiciary Committee were too incapacitated to
vote in person, McConnell might be able to name replacements.
Assuming that Barrett's nomination reaches the Senate floor-which is a
pretty safe bet-it could still encounter difficulties because of the
coronavirus. Republicans have a 53-47 majority. But two Republican senators,
Susan Collins, of Maine, and Lisa Murkowski, of Alaska, are on record
opposing any vote on a Supreme Court nominee so late in the campaign season.
This shaves down the majority to a perilous point. If three Republican
senators are still absent at the end of the month, and if Murkowski and
Collins hold firm, McConnell would be short of the necessary votes to
confirm Barrett. It's possible that McConnell could try to allow senators to
vote remotely, but that would require a change in the standing rules of the
Senate and would upend so many norms that it would likely prove
incendiary-not that that would necessarily stop McConnell.
In other words, Barrett's chances are slightly less good than they were ten
days ago, but it would still take an awful lot of extraordinary conditions
for her nomination to falter. Clearly, the odds are long for the Democrats.
But, if the Trump Presidency has taught us anything, it's that almost no
plot twist, no matter how wild, is beyond belief.
