COVID-19 outbreak in GOP caucus complicates Barrett affirmation

Tuesday round-up - SCOTUSblog

Posted on Sat, Oct 3rd 2020, 11:33 pm by Katie Barlow

Republican plan to rush Judge Amy Coney Barrett before the Supreme Court is messed up after three Republican senators – including two on the Senate Judiciary Committee – tested positive for the coronavirus.

By Saturday night, at least eight people who attended Barrett's White House nomination ceremony a week ago tested positive for COVID-19, leading some analysts to conclude 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 tested negative, according to the White House. The Washington Post reported that Barrett tested positive for COVID-19 the previous summer but has since recovered. Scientists are unsure of the extent to which post-virus recovery can confer immunity.

Senate Majority Leader Mitch McConnell (R-Ky.) Doubled down his plan for a quick endorsement of Barrett in a radio interview Friday. The Judiciary Committee is slated to begin their confirmation hearing on October 12, and McConnell said there are still plans for the committee to approve her nomination and refer it to the entire Senate by October 22. However, he refused to commit to a Senate floor vote before the November 3 election. He also suggested that recent positive COVID tests underscore the need for remote hearing.

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

The key question for Republicans is whether and how they can meet the Senate procedural requirements to approve Barrett on the current schedule, as at least three members of their caucus are temporarily unable to vote in person. In addition to testing positive from Lee and Tillis (who are both members of the Justice Committee), Wisconsin Senator Ron Johnson (who did not attend the White House ceremony and is not a member of the committee) announced on Saturday morning that he was positive for the virus tested. According to the guidelines of the Centers for Disease Control and Prevention, people who show no symptoms must isolate for 10 days after a positive test, and those with symptoms must isolate for at least 10 days after symptoms first appear.

Republicans have a 53-47 majority in the Senate, but two Republican senators – Susan Collins from Maine and Lisa Murkowski from Alaska – have stated that they will not vote Barrett for Barrett's endorsement until the election.

Consultation with the committee will continue

The Judicial Committee's rules allow the committee to hear statements from a distance. In fact, former FBI director James Comey testified remotely before the committee this week. On Friday night, committee chairman Senator Lindsey Graham (R-S.C.) Said that any committee member would be free to attend the Barrett Hearing remotely.

However, the rules also state that the majority of committee members must “actually be present” in order to advance a nomination for the entire Senate. The committee has 22 members – 12 Republicans and 10 Democrats – so at least 12 members would need to be physically present in the committee room to elect Barrett from the committee. If the Democrats decided to boycott the committee hearing and either Lee or Tillis couldn't be physically present to vote, the committee would not have the 12 votes it would take to approve their nomination.

In this scenario, McConnell could bypass the committee process and send Barrett's nomination directly to the Senate. The Justice Committee is not legally required to vote on judicial nominations – or hold confirmatory hearings at all – but not 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 hesitation about Stone, he proposed that they testify before the committee to address those concerns. The modern version of the committee's affirmative process, in which senators pushed candidates for their views on justice, began in 1955 when the Southern Dixiecrats v who wanted to grill education.

However, the fact is that there is no constitutional requirement for a hearing for confirmation.

Senate vote in danger

The Constitution comes into play if Barrett's nomination makes it to the Senate. Article I requires that the Senate has a quorum in order to conduct business. In 1892 the Supreme Court ruled that each congress house determined for itself when a quorum was held. Under the current rules, a quorum consists of 51 senators who are physically present in the Senate. (Vice President Mike Pence, although the President of the Senate, does not count towards the establishment of a quorum.) McConnell therefore requires 51 members present to vote on Barrett's nomination. Right now, with Lee, Tillis, and Johnson, he doesn't have 51 healthy Republican senators in isolation, and so Democrats can use procedural tools to deny a quorum and prevent the entire Senate from doing business.

The Senate could change its own rules to include proxy voting that would allow Republicans to create a quorum and hold votes without all of their members physically present – but it would need a quorum in order for such a rule change to vote. McConnell would also need two-thirds of his body to invoke a rule change – unless he used what is known as the "nuclear option."

And even if McConnell manages to raise a quorum, it will be harder to get the votes to endorse Barrett. That's because Collins and Murkowski – while likely willing to help Republicans maintain a quorum – have already promised to vote "no" to Barrett's nomination. As a sign of the low margin of error, CNN reported on Saturday that McConnell had sent his caucus a memo saying he needed all Republican senators in Washington by October 19. If Lee, Tillis, Johnson, or any other Republican Senator had to be absent for an extended period of time, Barrett's confirmation would be seriously jeopardized by election day.

One final hypothetical fold concerns the role of Pence, who would normally cast the vote if the Senate were stuck on Barrett's nomination. According to constitutional law experts, if Trump's health worsened and he was forced to hand over the powers of the presidency to Pence under the 25th Amendment, Pence would not be able to act as a Senate tiebreaker while serving as incumbent president.

Posted in Amy Coney Barrett's nomination to the Supreme Court, Featured

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Katie Barlow,
COVID-19 outbreak in GOP caucus complicates Barrett's confirmation,
SCOTUSblog (October 3, 2020, 11:33 p.m.),