supreme court

Could the White House COVID-19 Outbreak Stop Barrett’s Confirmation?

Amy Coney Barrett poses maskless with Senator Mike Lee on September 29, three days before Lee found out he had tested positive for COVID-19. Photo: Al Drago/Getty Images

There is a growing likelihood that a celebratory White House reception following the president’s introduction of Amy Coney Barrett as his Supreme Court nominee on September 26 may be responsible for quite a few of the many new COVID-19 cases within Trump’s orbit. That could be richly ironic, since the infection of at least three Republican senators is now complicating Barrett’s confirmation, previously thought to be a done deal so long as nothing strange happened. Maybe a potential super-spreader event inside the White House shouldn’t count as strange given its current occupants’ habitual recklessness, and the sort of contempt for prudence many Republicans have worn as a badge of honor, but it could be consequential.

So far, two senators at that event (Mike Lee of Utah and Thom Tillis of North Carolina) have tested positive; both are members of the Senate Judiciary Committee, which is due to begin hearings on Barrett’s nomination October 12 as part of a breakneck schedule to get ’er done before Election Day. A third senator, Ron Johnson of Wisconsin, has also just tested positive, though apparently via some different path of infection. In addition, two more Judiciary Committee Republicans, Ted Cruz and Ben Sasse (along with non-committee member James Langford) are in quarantine because of contacts with infected senators. Chuck Grassley, who attended a Senate Judiciary Committee meeting with Lee on Thursday, is currently flouting CDC guidelines by refusing to get tested. So the Republican Senate majority, already complicated by objections to the rushed nomination from Susan Collins and Lisa Murkowski, is melting before our eyes, with the possibility remaining that additional Republican senators will test positive in the perilous days just ahead.

The two COVID-19-positive Judiciary senators say they will finish up their ten-day quarantine regimens just before committee hearings begin; the quarantine schedules for the other two (Cruz and Sasse) are less clear at this point. There is a separate dispute as to whether committee chairman Lindsey Graham could hold partially virtual hearings (to which Democrats have already objected). But the Senate has not authorized any form of remote voting, so on procedural motions and the final vote to “recommend” Barrett to the full Senate, the absence of two or more Republicans on a committee where they hold a 12-10 majority could be a real problem.

Technically, if the Judiciary Committee were to tie in a final vote on Barrett, it could refer her confirmation to the Senate without a recommendation, but that wouldn’t look good. With Graham anticipating a final committee vote by October 22, any procedural delays Democrats could manage might make a pre-election confirmation very difficult.

In the full Senate, Mitch McConnell doesn’t just have to stop further defections on Barrett to prevail; he has to maintain a quorum even to bring up her confirmation to a vote. As David Dayan notes, Democrats could force a temporary adjournment if there aren’t 51 Republican senators on hand (the vice president cannot vote on quorum calls). And again, McConnell has no margin for error in terms of either time or support.

Given the uncertain trajectory of both presidential and senatorial COVID-19 infections, Republicans could just pack it up and count on confirming Barrett in a lame-duck session that will take place no matter what happens on and immediately after November 3. But aside from the risk of really arousing public fury if there’s a Supreme Court confirmation vote after McConnell’s party has lost the White House and the Senate, Republicans might immediately lose a Senate vote if Mark Kelly defeats Martha McSally in Arizona (that contest is technically a special election to fill the remainder of the late John McCain’s term). It could all get dicey, and conservative activists would never forgive Republicans from blowing this opportunity to stack the Court.

Republicans have gotten just one bit of good luck in this fraught situation: Barrett herself reportedly contracted COVID-19 earlier in the summer and recovered and presumably is protected now by antibodies (she has tested negative since the Oval Office event). A Supreme Court confirmation without a healthy nominee definitely wouldn’t be happening.

Could the White House Outbreak Stop Barrett’s Confirmation?