COVID-19 could delay vote on Barrett nomination
2 Republicans on Senate committee test positive
WASHINGTON – The day before Sen. Mike Lee disclosed he had tested positive for COVID-19, the Utah Republican participated in an in-person Senate Judiciary Committee meeting that lasted about 90 minutes and was attended by 15 other senators.
That session Thursday – during which Lee and other senators debated nominations while not wearing masks – highlights the possible pitfalls of the Senate Republicans’ fast-track confirmation plan for Amy Coney Barrett, President Donald Trump’s nominee for the Supreme Court vacancy.
Trump disclosed that he had tested positive Friday, and at least seven other people who attended a White House ceremony unveiling Barrett’s nomination have also been infected, including two Republican members of the Judiciary Committee.
Many other senators on the committee, which will question Barrett, have almost certainly been exposed to the coronavirus. If additional senators become ill and if they abide by federal quarantine guidelines, that could jeopardize the already-scrunched timeline for Barrett’s confirmation.
Sarah Binder, an expert on Congress with the Brookings Institution think tank, said the variables are the course of the virus within Senate GOP ranks and “how brazen Republicans will be to bend or nuke rules that require physical presence of senators.”
The Judiciary Committee, chaired by Sen. Lindsey Graham, R-S.C., plans to begin confirmation hearings Oct. 12. He said the hearings will last three to four days – and lawmakers can attend in person or virtually. The hearing can go forward even though the full Senate is in recess because of COVID-19.
Democrats can use delaying tactics to draw out the hearings. They accused the GOP of rushing Barrett’s confirmation in a “power grab” to cement a conservative tilt on the Supreme Court and argued the hearings would put more senators at risk of contracting COVID-19.
It’s not clear how long Democrats can extend the confirmation process. Sen. Dick Durbin, D-Ill., a Judiciary Committee member, said they can slow Barrett’s confirmation down but not stop it.
Generally, Democrats can force a one-week hold on a committee vote. If more senators become ill, that could further complicate the proceedings.
Two Republican senators on the Judiciary Committee have disclosed positive test results: Lee and Sen. Thom Tillis, R-N.C.
Lee said he was tested Thursday – the same day he attended the Judiciary Committee’s meeting – after experiencing what he initially thought were allergy symptoms. When he disclosed the positive result Friday, Lee said he would isolate for the next 10 days.
Lee could return to Senate business as early as Oct. 13, the day after the Barrett hearings begin and the first day she will be questioned by lawmakers. His return could be delayed if he becomes seriously ill.
Tillis also reported testing positive Friday and said he would isolate for 10 days if he has a speedy recovery.
Lee was probably contagious Thursday when he attended the committee hearing, a business meeting to discuss several lower-court nominees and a pending bill.
A video of the committee session shows Lee and 15 others animatedly debating in a spacious committee room, where senators and staff were seated apart from each other. Senators generally took their masks off to speak, and Lee raised his voice, which health experts say can propel air droplets farther than normal conversation does.
Lee attended a Senate GOP lunch Sept. 29 and a Judiciary Committee hearing Sept. 30, possibly widening the number of Republicans exposed if he was contagious. One other Republican senator has tested positive: Ron Johnson of Wisconsin. He is not on the Judiciary Committee.
“Senator Johnson feels healthy and is not experiencing symptoms,” his spokesperson, Ben Voelkel, said Saturday. “He will remain isolated until given the all-clear by his doctor.”
Johnson was not among those attending the White House ceremony announcing Barrett’s nomination.
There are 12 Republicans and 10 Democrats on the Judiciary Committee. If two Republicans are out of pocket for the vote, the makeup of the committee would be evenly split: 10 Republicans and 10 Democrats.
As long as the committee has a majority of its members present for a vote – 12 of the committee’s 22 senators – other senators can vote by proxy under the panel’s rules.
Republicans could advance Barrett’s nomination to the full Senate even if she receives an unfavorable vote in committee, according to the Congress Research Service, a nonpartisan arm of the legislative branch.
A negative recommendation or no recommendation “permits a nomination to go forward, while alerting the Senate that a substantial number of committee members have reservations about the nomination,” according to a CRS report.
If several Republicans are ill and unable to attend a vote, the Democrats could try to deny the GOP the majority needed to advance Barrett’s nomination by not showing up. Under the panel’s rules, no legislation or nomination can be reported out of the committee unless a majority “is actually present at the time such action is taken and a majority of those present support the action taken.”
Binder, a professor at George Washington University, said the Judiciary Committee’s rules require at least two members of the minority party to be present for a nine-person quorum to conduct business – such as voting on the Barrett recommendation.
She noted that Graham ignored that rule last year when he wanted to approve a bill Democrats opposed, and he could do so again at “little cost.”
If would be harder, she said, for Graham to blow off the rule that requires 12 of 22 senators to be “actually present” to vote on a nomination.
Senate Majority Leader Mitch McConnell, R-Ky., has not scheduled a vote on Barrett’s confirmation, but he has made it clear he wants her confirmed before the election Nov. 3.
Two Republican senators indicated they will not support Barrett’s confirmation if the vote is held before the election: Sens. Susan Collins of Maine and Lisa Murkowski of Alaska.
Republicans hold a 53-47 majority in the chamber, and Vice President Mike Pence can break any tie votes.