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.
