Could the Covid-19 virus Delay Barrett’s Confirmation?

Judge Barrett with Sen. Lee, who was probably covid infected when they met, he has it now.

Sen. Mitch McConnell has delayed the convening of the full Senate until Oct. 19 because three Republican Senators have tested positive for the Covid-19 virus. But he is pushing ahead with Barrett’s confirmation hearing scheduled for Oct. 12.

Is it now possible that the Covid-19 virus could do what the Democrats can’t do — fatally delay the nomination of President Trump’s Supreme Court nominee Amy Coney Barrett? 

It depends. Let’s see what it would take.

SCENARIO ONE

For the Republicans to confirm Barrett as scheduled, she would have to test negative on the Covid-19 virus up to and during Senate Judicial Committee hearings. If she tested positive, she could still be interviewed remotely. However, the optics of her not being present in the Senate committee room and just appearing on a screen is not good for the Republicans. It would provide ammunition to the Democrats’ charge that this is an unnecessarily rushed endeavor to bypass public input. Already, over 60% of those polled agree with this charge. 

It’s unlikely that Barrett will test positive. According to Washington Post sources, she had already tested positive last summer. Neither she nor the White House, however, have released a statement confirming that. 

Since the time she recovered from her infection — if in fact she had one — she’s regularly tested as negative. For her to test positive again would mean she’s either been reinfected or the first test was a false positive. Both conditions are statistically unlikely . Still, Barrett has been on the Hill at least three times during October’s first week, meeting with roughly 30 senators in one-on-one meetings to discuss her nomination. If she wasn’t wearing a mask for those closed room meetings, she could have been infected. 

Also, at the Rose Garden reception for her nomination on Sat., Sept. 26, Barrett (along with the majority of attendees) was not masked most of the time nor practicing social distancing. She greeted many attendees in a reception line. At least six of the participants have since tested positive, including Republican Senators Mike Lee of Utah and Thom Tillis of North Carolina.

SCENARIO TWO

Both senators sit on the Judiciary Committee, which is scheduled to begin hearings on the Barrett nomination on Oct. 12. Republican staff have said they expect the committee’s opening statements, questions, and testimony from outside witnesses to last three or four days. 

The public health agency CDC recommends that someone who has tested positive and is asymptomatic should isolate for 10 days after their symptoms began. The agency recommends a more stringent 14-day quarantine period for those who have been in contact with an infected person but do not have confirmed infections.

If those guidelines are applied, Lee and Tillis would isolate for 10 days from Oct. 2. That was the date they announced they were infected. Sen. Lindsey Graham, the chair of the Judiciary Committee, said that they would be able to attend the committee hearing on Barrett’s confirmation because it starts ten days later on the 12th. 

It’s lucky for them they’re not professional baseball players. The baseball leagues require players to receive two tests showing they’re negative after their 10-day period of isolation. There is apparently no such concern for infecting fellow elected officials. 

Senators who’ve been in contact with the infected Lee and Tillis may choose to adhere to the 14-day quarantine period. If they are on the Judiciary Committee, they would be limited to participating virtually. 

Senate Minority Leader Charles E. Schumer and Sen. Dianne Feinstein, the top Democrat on the Judiciary Committee, have asked to delay Barrett’s hearing. They believe a virtual committee meeting will set a dangerous precedent for the Senate. As expected, the Republicans have rebuffed their request. 

But here’s the unknown factor: The actual committee vote is scheduled for the Judiciary Committee on the 22nd. By that date, if two more Republicans on the committee are infected and quarantined, the committee could not vote out a majority recommendation to confirm, assuming that all the Democrats on the committee vote against it. .

That might not stop a full Senate vote, but it could delay such a vote past Election Day. Should Joe Biden be confirmed as the winner of the election before the final vote is taken on Barrett’s confirmation, increased public pressure not to confirm her might persuade some Republicans to change their minds.

Since Trump intends to challenge Biden’s election all the way up to the Supreme Court, a delayed SCOTUS decision might push a confirmation vote into the next Congressional session.

SCENARIO THREE

There’s one other Covid-19 scenario:  If both parties are hit with Covid-19 absences, the Republicans could be denied a full Senate quorum to confirm Barrett. Senate rules currently do not allow for remote voting.     

An analysis by the nonpartisan Congressional Research Service explains how quorum works in the Senate. The Constitution states that “a Majority of each [House] shall constitute a quorum to do business....” The Senate presumes that it is complying with this requirement until a Senator “suggests the absence of a quorum.” The Senate cannot resume its business until a majority of senators respond to a quorum call by the Senate Clerk. If a quorum fails to be reached, the Senate adjourns or sends out the sergeant of arms to secure the attendance of enough senators to constitute a quorum. 

Now here’s scenario that could work for the Democrats stopping Barrett’s confirmation. It would require that at least three Republican senators are absent. That would reduce their number to 50 from 53 Republicans being present. That may not be too much of a stretch. Forty-eight senators are over the age of 65, which puts them into the high-risk category of becoming ill or succumbing to the Covid-19 virus.

If the Republicans have only 50 members present, and all but one Democrat is absent, the quorum rule could come into play. The one Democrat on the senate floor would ask for a roll call to determine if there are 51 senators present. The reason for the need of that one Democrat, is that if there were none present, then it is not expected that any Republican would ask for a quorum. And without the ask, the Senate could precede to conduct its business. Once the request is made, the Democrat could leave, not answering the call. Do the math and see if they then have a quorum. The vice president only votes to break a tie, not to create a quorum. 

All of the above conditions are dependent on at least one “if.” But “ifs” do happen. Who would have expected that President Trump would have contracted the virus so close to the election? So, preparing for “if” situations, may not be a fantasy but preparation for a possible opportunity. 

Nick Licata is author of Becoming A Citizen Activist, and has served 5 terms on the Seattle City Council, named progressive municipal official of the year by The Nation, and is founding board chair of Local Progress, a national network of 1,000 progressive municipal officials

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