Even though President Trump and three Republican senators have been sidelined by the coronavirus, can Republicans still confirm Judge Amy Coney Barrett to the U.S. Supreme Court before the Nov. 3 election as planned? That’s less certain than it was before Friday. Senate Majority Leader Mitch McConnell (R-Ky.) now plans (if Democrats consent) to recess the Senate for two weeks. His goal is to get and keep senators healthy so that Republicans can get back into the chamber and confirm Barrett by late October.
Two forces could upend McConnell’s plans: The uncertain course of the coronavirus and a complicated web of byzantine Senate rules and practices. Here’s what might lie ahead.
Senate Republicans have a math problem
Senators need a simple majority of those present both to cut off debate on Barrett’s nomination on the Senate floor and to confirm her. Three of the GOP’s 53 senators, Thom Tillis (N.C.), Mike Lee (Utah) and Ron Johnson (Wis.), have tested positive for the coronavirus and are self-isolating. Three more GOP senators, Ted Cruz (Tex.), James Lankford (Okla.) and Ben Sasse (Neb.), tested negative, but because they were in the room with Trump when he introduced Barrett as his nominee, they are quarantining for 10 days. Two other Republican senators, Susan Collins of Maine and Lisa Murkowski of Alaska, have said they oppose confirming a nominee before the election.
If they don’t get sick, Cruz, Lankford, and Sasse are expected to be back in the Senate by Oct. 12. But if the three infected senators are still unable to travel to the Capitol by a confirmation vote, Barrett’s nomination would stall, 48 for and 49 against. In other words, if the vote were held this week — and if senators abided by public health guidelines by the Centers for Disease Control and Prevention — Barrett couldn’t get confirmed.
The infected Republicans can’t phone it in. Chamber rules require senators to be physically present to vote. Sens. Rob Portman (R-Ohio) and Richard J. Durbin (D-Ill.) floated a bipartisan plan earlier this spring to allow remote voting during crises like the pandemic, which McConnell ignored, even as the House adopted a system of “proxy” voting that enables absent members to vote.
The numbers could be tricky in committee, too
The Judiciary Committee includes 12 Republicans and 10 Democrats. Two of the infected Republicans — Tillis and Lee — serve on the committee. Without them, the parties are evenly balanced on the committee, 10 to 10.
But that wouldn’t block a confirmation hearing, because the committee’s rules only require a single senator to take testimony. Nor does any rule prohibit the panel from conducting the hearing virtually, though that would be unprecedented for a Supreme Court nomination. Neither would a tie vote derail the nomination. Historically, Judiciary Committees have usually forwarded nominations to the floor, even when the committee is tied or a majority recommends against confirmation.
But both committee and Senate rules could raise difficulties if Republicans try to advance the nomination from committee without Tillis and Lee present.
More importantly, committee rules mandate that a majority of the committee be “actually present” to report a nomination from the committee. That means 12 senators would have to show up in person to vote on the nomination. If Lee and Tillis can’t make it to the Capitol, the committee won’t have a quorum unless two Democrats show up.
Republicans could try to dodge the committee rule, but that’s easier said than done. A related Senate standing rule requires a majority of the committee to be “physically” present to report a nomination to the full Senate. If committee Republicans ignore that rule, Democrats could object to consideration of the nomination. The Senate’s presiding officer would probably rule that the nomination be returned to committee. A Senate majority could vote to override that ruling, but without the three infected senators, Republicans would need the votes of either Collins or Murkowski.
The majority could still rule
McConnell might try to have the Judiciary Committee meet in the spacious Senate chamber to report the nomination — enabling quarantined Judiciary Committee members to cast their votes from the galleries above. And sick Republicans could ignore health protocols and vote from there to put Barrett on the bench before the election. Of course, that would risk spreading the coronavirus to other senators, staff and workers.
Could McConnell just replace the two infected senators on the committee? Not really. Motions to change the committee size or roster are technically “debatable” under Senate rules, meaning that any such McConnell move could be blocked by a Democratic filibuster. Similarly, if McConnell were to “discharge” the nomination from committee, a seldom-used Senate move, he is likely to face a filibuster.
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McConnell could revive the Portman-Durbin proposal for remote voting. But resolutions to change Senate rules can be filibustered, requiring two-thirds of senators present and voting to end debate. Even a less permanent change — adopting a Senate “order” to implement remote voting — could be filibustered. Democrats are unlikely to vote for any proposal that could hasten confirmation.
McConnell could try to nuke any of these or other rules that complicate his confirmation plans. But he needs a majority of the Senate to go along — and Collins and Murkowski are iffy. Would either of these two vote with McConnell to nuke the relevant rules? Perhaps, although Collins is in a highly contested election, and doing so might hurt her chances. If so, Republicans could set aside institutional barriers by a vote of 49 to 48, even with three GOP senators still quarantined. If not, the Senate could only confirm Barrett when at least one of the infected senators returns to the Capitol — thereby allowing Senate Republicans to squeak Barrett onto the court by a vote of 50 to 49 before the voters can weigh in.
Of course, all this could be blown up if more GOP senators get the virus or if any of those now quarantined get too sick to return later. Still, if enough infected Republicans were to ignore health guidelines and come back to the Capitol to cast needed votes, neither the virus nor the rules would be able to stop Republicans from putting Barrett on the bench before the election.
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