The coronavirus cases that could prove most problematic for the GOP’s chances of confirming Barrett are a trio of Republican senators: Mike Lee of Utah, Thom Tillis of North Carolina, and Ron Johnson of Wisconsin. Lee and Tillis, who both serve on the Judiciary Committee, were at the White House last Saturday and later reported testing positive for the virus, while Johnson said in a statement today that he had been exposed to the virus in D.C. later in the week.
Republicans have a 53–47 majority in the Senate, but two of their members, Senators Susan Collins of Maine and Lisa Murkowski of Alaska, have said they oppose holding a vote to confirm a Supreme Court justice before the election. The Senate isn’t expected to hold a final vote until the end of the month, but were Lee, Tillis, and Johnson to be absent, Republicans wouldn’t have a majority to approve her without the support of Collins and Murkowski. (All 47 Democrats are likely to vote no, in part out of anger that McConnell plans to jam a nominee through after he refused to hold a vote on President Barack Obama’s nomination of Judge Merrick Garland in 2016.)
It’s also possible that more Republican senators will come down with the virus in the next few days; multiple GOP lawmakers are now quarantining after having been exposed to their colleagues or others who are infected. Unlike the House of Representatives, which changed its rules because of the pandemic to allow lawmakers to cast votes remotely, senators must be physically present on the floor to vote.
McConnell has made no secret of the fact that his top priority in the coming weeks is to confirm Barrett, at seemingly any cost. Republicans have said a full Supreme Court might be needed to decide election-related cases, and in a further signal of his intentions, the majority leader said he discussed Barrett’s confirmation during a phone call with the hospitalized president today. He also announced that the Senate would recess for the next two weeks—a move apparently designed to protect his members from further exposure inside the Capitol and ensure that his conference is healthy enough to vote on Barrett before the election. At the same time, he and Senator Lindsey Graham, the chair of the Judiciary Committee, announced that even though the full Senate would be out of town, Barrett’s confirmation hearings would take place as scheduled beginning October 12. Under the Senate’s pandemic rules, Lee and Tillis could participate virtually if they were not cleared to attend in person.
Senate Democrats immediately protested, writing in a letter to Graham that “to proceed at this juncture with a hearing to consider Judge Barrett’s nomination to the Supreme Court threatens the health and safety of all those who are called upon to do the work of this body.” Yet the Democrats don’t have the votes, alone, to block her nomination until after the election.
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