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 and consider whether she should be confirmed to the high court, 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.”
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Here’s what we know about the timeline to confirm Barrett and whether it could be delayed or derailed:
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.
A committee spokesperson did not respond to questions about a date the panel would vote on Barrett’s confirmation. A committee vote could happen as early as Oct. 16, but that seems unlikely. Generally, Democrats can force a one-week hold on a committee vote. If more senators become ill, that could further complicate the proceedings.
Which committee members have been diagnosed with COVID-19?
Two Republican senators on the Judiciary Committee have disclosed positive test results: Lee and Sen. Thom Tillis, R-N.C.
Judge Amy Coney Barrett, President Donald Trump’s nominee for the U.S. Supreme Court, meets with Sen. Mike Lee, R-Utah, on Sept. 29 in preparation for her confirmation hearing.
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.
That means 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. Sunday, a spokesman for Tillis said his mild symptoms “have significantly improved, and the only lingering symptom is the loss of his sense of taste and smell.”
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Sen. Deb Fischer, R-Neb., joins Sens. Marsha Blackburn, R-Tenn.; Mike Crapo, R-Idaho; Thom Tillis, R-N.C.; Josh Hawley, R-Mo.; Ben Sasse, R-Neb.; Mike Lee, R-Utah; and Kelly Loeffler, R-Ga., in the Rose Garden on Sept. 26 as President Trump introduces Judge Amy Coney Barrett as his nominee to the Supreme Court.
Have other senators been exposed?
Yes. 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 when they spoke, and Lee raised his voice, which health experts say can propel air droplets farther than normal conversation does.
Several of those in the room announced negative test results Friday and Saturday, but it can take a few days after exposure for a test to show infection. It can take up to 14 days before an infected person shows symptoms.
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 in a statement 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.
What happens if others test positive and have to quarantine?
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 on the Senate’s judicial confirmation process.
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 of political science 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.”
Sen Lindsey Graham, R-S.C., plans to begin the Supreme Court confirmation process Oct. 12.
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. If two Republican senators are too ill or too contagious to attend a committee meeting in person, the panel’s vote could be delayed, she said.
If and when Barrett goes to the full Senate, Democrats can continue to gum up the works, though they have not indicated how far they would go.
What happens when Barrett’s nomination goes to the Senate floor?
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. Unlike in the House, McConnell has not changed Senate rules to allow proxy voting in light of the pandemic.
Sunday, Sen. Tom Cotton, R-Ark., predicted Barrett would be confirmed by the end of October, and he noted that senators in past years voted despite serious ailments.
“There is a long tradition of ill or medically infirm senators being wheeled in to cast critical votes on the Senate floor,” Cotton said. “Most recently, (West Virginia Democratic Sen.) Robert Byrd in 2009 repeatedly rolled in, in a wheelchair, just months before his death, to vote for Obamacare.”
Byrd, 92, did not have a highly contagious virus.
The Senate’s top Democrat, Chuck Schumer of New York, said Sunday that his party “will use every tool in the toolbox to delay and not have the votes occur.”
For Democrats to prevail, at least three GOP senators would have to be absent – and all Democrats would have to be present and vote “no,” along with Republicans Collins and Murkowski – to defeat Barrett’s nomination.
Contributing: Nicholas Wu and Ledyard King
This article originally appeared on USA TODAY: Supreme Court: Could COVID and Democrats delay Barrett’s confirmation?