COVID-19 outbreak in GOP caucus complicates Barrett confirmation

The Republican plan to swiftly confirm Judge Amy Coney Barrett to the Supreme Court is in disarray after three Republican senators – including two on the Senate Judiciary Committee – tested positive for the coronavirus.

As of Saturday night, at least eight people who attended Barrett’s nomination ceremony at the White House a week ago tested positive for COVID-19, leading some analysts to suggest that the ceremony may have been a “super spreader” event. Among the attendees who now have the virus are President Donald Trump and Sens. Mike Lee (R-Utah) and Thom Tillis (R-N.C.).

Barrett is tested daily and has tested negative, according to the White House. The Washington Post reported that Barrett previously tested positive for COVID-19 over the summer but has since recovered. Scientists are unsure of the extent to which recovering from the virus may confer immunity.

Senate Majority Leader Mitch McConnell (R-Ky.) doubled down on his plan for a quick confirmation of Barrett in a radio interview on Friday. The Judiciary Committee is scheduled to begin her confirmation hearing on Oct. 12, and McConnell said that the plan remains for the committee to approve her nomination and advance it to the full Senate by Oct. 22. But he refused to commit to a Senate floor vote before the Nov. 3 election. He also suggested that the recent positive COVID tests underscore the need for a remote hearing.

Senate Democrats immediately balked at the idea of a remote hearing, even though they previously wanted a rule change back in March to allow for remote voting. They are calling on Republicans to postpone the Barrett confirmation process.

The central question for Republicans is whether and how they can meet the Senate’s procedural requirements to confirm Barrett on the current timetable given that at least three members of their caucus will temporarily be unable to vote in person. In addition to the positive tests of Lee and Tillis (who both are members of the Judiciary Committee), Sen. Ron Johnson of Wisconsin (who was not at the White House ceremony and is not a member of the committee) announced Saturday morning that he tested positive for the virus. Under guidelines from the Centers for Disease Control and Prevention, people who show no symptoms must isolate for 10 days after a positive test, and people with symptoms must isolate for at least 10 days after symptoms first appear.

Republicans hold a 53-47 majority in the Senate, but two Republican senators – Susan Collins of Maine and Lisa Murkowski of Alaska – have said they will not vote to confirm Barrett before the election.

Committee hearing set to proceed

The Judiciary Committee’s rules allow for the committee to hear testimony remotely. Indeed, former FBI Director James Comey testified before the committee remotely this week. On Friday evening, the committee’s chairman, Sen. Lindsey Graham (R-S.C.), said any committee member will be free to participate in the Barrett hearing remotely.

The rules, however, also specify that a majority of committee members must be “actually present” to advance a nomination to the full Senate. The committee has 22 members — 12 Republicans and 10 Democrats — and so at least 12 members would need to be physically present in the committee room to vote Barrett out of committee. If Democrats decided to boycott the committee hearing, and either Lee or Tillis were unable to be physically present to vote, the committee would not have the 12 votes needed to approve her nomination.

In that scenario, McConnell could choose to bypass the committee process and send Barrett’s nomination directly to the Senate floor. The Judiciary Committee is not legally required to vote on judicial nominations – or even to hold confirmation hearings at all – but failing to do so would be provocative. The committee has held hearings on Supreme Court nominations since 1925, when President Calvin Coolidge nominated Harlan Stone to the court. After some senators expressed hesitance about Stone, he proposed testifying before the committee to assuage those concerns. The modern version of the committee confirmation process, with senators pressing nominees on their judicial views, started in 1955 when southern Dixiecrats wanted to grill John Marshall Harlan about his view of the court’s decision the previous year striking down school segregation in Brown v. Board of Education.

But the fact is there is no constitutional requirement for a confirmation hearing.

Senate vote in jeopardy

The Constitution does come into play if Barrett’s nomination makes it to the Senate floor. Article I requires a quorum to be present for the Senate to conduct business. In 1892, the Supreme Court held that each house of Congress determines for itself when a quorum is present. Under the current rules, a quorum consists of 51 senators physically present on the Senate floor. (Vice President Mike Pence, though the president of the Senate, does not count for the purposes of creating a quorum.) McConnell, therefore, needs 51 members present to hold a vote on Barrett’s nomination. Right now, with Lee, Tillis and Johnson in isolation, he does not have 51 healthy Republican senators, and so Democrats can use procedural tools to deny a quorum and block the full Senate from conducting business.

The Senate could change its own rules to implement proxy voting, which would allow Republicans to create a quorum and hold votes without all of their members being physically present — but it would need a quorum present to vote for such a rule change. McConnell would also need two-thirds of the body to invoke cloture on a rule change — unless he deployed the so-called “nuclear option.”

And even if McConnell manages to muster a quorum, actually garnering the votes to confirm Barrett will be a more difficult hurdle to clear. That’s because Collins and Murkowski – while likely willing to help Republicans shore up a quorum – have already pledged to vote “no” on Barrett’s nomination. In a sign of how slim the margin for error is, CNN reported on Saturday that McConnell circulated a memo to his caucus saying that he needs all Republican senators back in Washington by Oct. 19. If Lee, Tillis, Johnson or any other Republican senator were forced to be absent for an extended period of time, Barrett’s confirmation by Election Day would be in serious jeopardy.

One final hypothetical wrinkle involves the role of Pence, who ordinarily would cast the tie-breaking vote if the Senate deadlocked on Barrett’s nomination. If Trump’s medical condition deteriorated and he were forced to hand over the powers of the presidency to Pence under the 25th Amendment, Pence could not serve as the Senate tiebreaker while serving as acting president, according to constitutional law experts.