Republicans had a straightforward path to confirm Supreme Court nominee Judge Amy Coney Barrett before the Nov. 3 presidential election – get at least 51 senators united behind quickly moving the nomination and weather Democrats’ verbal barbs about Barrett’s perceived stances on Roe v. Wade and the Affordable Care Act (ACA) – and there wasn’t much Democrats could do to slow the elevation of the 7th Circuit judge to the highest court in the land.
But positive coronavirus tests by three Republican senators, two of whom are on the Judiciary Committee, have thrown a wrench in Republicans’ plans and given Democrats a new talking point.
“It’s not a matter of using it, it happened,” Judiciary Committee Sen. Amy Klobuchar, D-Minn., said to Fox News’ Sunday’s Chris Wallace when he asked if Democrats would use the GOP members’ positive coronavirus tests to delay the Barrett confirmation.
“We don’t know how many other Republican senators have it … they have a lunch together where they don’t have masks,” she said. “It’s very possible we’re going to have more senators, more staff. So I don’t know why you would ram through this Supreme Court hearing, put people in danger because it would be within that two-week period, while you have shut down the whole Senate.”
Senate Republicans, for their part, have insisted that the Barrett confirmation will not be delayed by their senators’ diagnoses.
“The important work of the Senate’s committees can and will continue as each committee sees fit,” Senate Majority Leader Mitch McConnell, R-Ky., said in a statement Saturday as he announced the full Senate would not convene due to the coronavirus diagnoses. “The Senate Judiciary Committee will convene on October 12 as Chairman Graham has scheduled to begin confirmation hearings for Judge Amy Coney Barrett’s nomination to the Supreme Court.”
He added: “Since May, the Judiciary Committee has operated flawlessly through a hybrid method that has seen some senators appear physically at its hearings while other members have participated virtually.”
But the virtual hearings, both Klobuchar and Senate Minority Leader Chuck Schumer, D-N.Y., have insisted, are not sufficient for a lifetime appointment to the Supreme Court. Klobuchar said on “Fox News Sunday” that a sufficient back-and-forth was not possible under those circumstances, to which Wallace responded that her Sunday show interview was being conducted virtually with the senator in Minneapolis.
“The idea of having virtual hearings where no one is with the witness for the highest court in the land for a life appointment that would have such effect on peoples’ lives makes no sense,” Schumer said in a Sunday press conference. “A virtual hearing is virtually no hearing at all.”
Schumer added Monday: “The GOP must halt this increasingly reckless Supreme Court process, and the Senate needs thorough COVID testing now… Americans see the similarity between GOP willingness to put Senators and staff at risk in pursuit of power and their willingness to strip health care from millions.”
The Senate Judiciary Committee as recently as last week had former FBI Director James Comey appear virtually for a hearing on the use of Foreign Intelligence Surveillance Act (FISA) warrants in the Crossfire Hurricane investigation. And it’s held virtual hearings regularly all summer, including on judges. There are no quorum requirements at Judiciary Committee hearings.
So Republicans will be able to have their hearing. But a vote out of the Judiciary Committee, if committee Sens. Thom Tillis, R-N.C., and Mike Lee, R-Utah, are not recovered from the coronavirus by the Oct. 22 scheduled vote, is where they could hit snags.
“In committee, there is one rule in the Judiciary Committee rules, any member can postpone a business meeting for a week,” James Wallner, resident senior fellow for governance of the R Street Institute, told Fox News. “Republicans will probably, if they needed to, likely, I would imagine, get rid fo that rule if it stood in between them and confirming the justice if they have the votes.”
Wallner added that there is also a rule requiring two Democratic members to be physically present for a quorum for the committee to do business.
“Republicans can simply change that rule, too,” he said. “And Democrats should expect that they will. But what they’re trying to do is not bottle her up in committee, what they’re trying — what they should be trying to do if they would like to defeat her or prevent her confirmation before Election Day — is to redefine that narrative.”
The most effective narrative if Democrats want to pressure Republicans into voting against Barrett in an eventual floor vote, Wallner said, is to create the narrative that what the Senate is doing is unprecedented.
“If you’re Democrats right now, you want to kind of play up that and emphasize that,” he said. “And if you’re Republicans, you want to kind of project normalcy and routine and habit and you want to reassure your members and their constituents that this is fine.”
That’s what Republicans have been doing, emphasizing that the Judiciary Committee has been holding virtual hearings for months and citing precedent that in almost all cases that the Senate and White House are controlled by the same party, election-year Supreme Court nominees are confirmed. Democrats respond by pointing out that no Supreme Court nominee has ever been confirmed so close to a presidential election.
It’s notable that there is nothing in the Constitution that requires a committee hearing on a Supreme Court nomination and it did not become regular practice until the 20th Century. And under current rules, a nominee can receive a floor vote without a favorable Judiciary Committee recommendation. Such was the case with Robert Bork, who was reported unfavorably, and Justice Clarence Thomas, who was reported without recommendation.
And even if Democrats do somehow bottle up the Barrett nomination in committee, Republicans could theoretically nuke a filibuster against a resolution to discharge the committee from considering the nomination and get Barrett to a floor vote. But, Wallner said, that would further play into Democrats’ narrative that the nomination is unprecedented.
Carl Tobias, the Williams Chair in Law at the University of Richmond, further noted that the time it takes the Senate to process most modern Supreme Court nominations be being cut by about half for Barrett. He said the current process feels “incredibly rushed, especially compared to” the last two Trump Supreme Court nominations, which he praised as “very systematic and very thorough, comprehensive” processes.
Ideally for Republicans, Tillis and Lee, as well as Sen. Ron Johnson, R-Wis., will have recovered from the coronavirus and be able to attend a floor vote by the end of the month, which is when the GOP hopes to have Barrett confirmed. If they wait until after the election and Republicans suffer electoral losses in the battles for the Senate and White House they could risk last-second defections.
But even if the senators are still sick or even contagious by that time, Sen. Tom Cotton, R-Ark., suggested that Republicans would make sure every necessary vote is present to push through the Barrett confirmation.
“There has a long and venerable tradition of ill or medically infirm senators being wheeled in to cast critical votes on the Senate floor,” Cotton said on “Sunday Morning Futures.” “Most recently, Robert Byrd in 2009 repeatedly rolled in, in a wheelchair, just months for his death to vote for Obamacare. So I’m confident that every senator will be in attendance when his or her vote is needed.”
A source close to the confirmation process told Fox News that if Lee, Tillis or Johnson — or any other senators — are still ill and contagious when the time comes for a floor vote they could be isolated and vote from the Senate gallery.
That is a potential option, Wallner said, but would only further underscore the polarization in American politics.
“I guess the question is, is it worth it? And I think how we think about the Supreme Court today, people say, yes, it clearly is worth it,” Wallner said of potentially bringing in contagious senators for the purpose of casting a vote. “But that should be a warning sign or a red flag…as to our separation of powers system that we lived under since the Constitution was ratified in 1789.”
The Senate Judiciary Committee Chairman Lindsey Graham, R-S.C., indicated just minutes after Lee announced his coronavirus diagnosis that the committee would go ahead with the hearings and the committee’s GOP press office released a statement on Saturday confirming that plan. And if Republicans stick together — despite a few coronavirus cases among their ranks — there is still a clear path for Barrett to be confirmed.
“As long as they have the votes and they can get her out of committee,” Wallner said, Republicans can confirm the nominee.
“Whatever Republicans can do to make sure that those votes are cast in an environment that is best suited for their success, they’re going to win,” he added. “And if Democrats don’t change that, then they’re going to lose.”
Democrats, however, are intent on continuing to give it their best shot to stall Barrett’s confirmation.
“There is no reason on God’s green earth why these shouldn’t be delayed other than in an effort to rush a witness through in an inadequate hearing where people can’t even see the witness face to face,” Schumer said Sunday.
Fox News’ Marisa Schultz and Shannon Bream contributed to this report.