Here's How Far Mitch McConnell Is Willing to Go to Get Amy Coney Barrett on the Supreme Court

As the coronavirus spreads through the upper ranks of the GOP, senators can Zoom their way through her confirmation hearing—but they have to appear in person to vote.
October 7, 2020, 3:00pm
Senate Majority Leader Mitch McConnell, R-Ky., is seen in the Capitol on Wednesday, September 30, 2020. (Photo By Tom Williams/CQ Roll Call via AP Images)

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Senate Majority Leader Mitch McConnell hasn’t wavered in his determination to put Republicans to work confirming Judge Amy Coney Barrett to the Supreme Court, even though numerous members of his party’s upper ranks have now tested positive for the coronavirus. And he just might get his way.

Within hours of Justice Ruth Bader Ginsburg’s death in mid-September, McConnell vowed to get President Donald Trump’s replacement a vote on the Senate floor. And Sen. Lindsey Graham, a South Carolina Republican and chair of the Judiciary Committee, which is tasked with holding Barrett’s confirmation hearing, has also made it clear that he’s moving full-steam ahead.

While senators on the committee can participate virtually in the hearing starting on October 12, the chamber’s arcane rules won’t let the senators to just Zoom their way through the official vote. They have to appear in person for that—just weeks after their colleagues tested positive for a virus that’s already killed more than 200,000 Americans and sent the president of the United States to the hospital.

McConnell needs at least 51 senators to even make a vote count. If any Republicans can’t show up, they could be putting Barrett’s confirmation—and the conservative majority her addition to the Supreme Court would cement—at risk. With a 53-47 majority in the Senate, the GOP can’t lose more than three votes if they want to confirm Barrett. Sen. Susan Collins of Maine and Lisa Murkowski of Alaska, both Republicans, have indicated that they will vote against Barrett’s nomination.

“I think that what we’ll see is an extraordinary effort to get all of the Republican senators into the chamber,” said Rich Arenberg, who worked on Capitol Hill for 34 years and wrote the book “Congressional Procedure,” a guide to the legislative processes in the Senate and House. If a senator doesn’t show up for work, Arenberg pointed out, McConnell even has the power to send the sergeant-at-arms after them.

So far, three GOP senators have so far announced that they’ve tested positive over the last few days. Utah’s Mike Lee, North Carolina’s Thom Tillis, and Wisconsin’s Ron Johnson are all currently in isolation.

Lee and Tillis, both members of the Senate Judiciary Committee, attended a packed, largely maskless Rose Garden ceremony last week to introduce Barrett’s nomination. Several other Republican senators, including more members of the Senate Judiciary Committee, also showed up to the ceremony, which is now suspected to have sparked the outbreak consuming the White House and Congress. (Barrett, who currently serves as a judge on the U.S. Court of Appeals for the 7th Circuit, has tested negative.)

Shortly after the news broke of their positive tests, McConnell postponed all floor activity to October 19. But he didn’t postpone Barrett’s confirmation hearing, which is slated to begin on October 12 and last for four days. Senators will be able to participate virtually.

For those on the committee who choose to show up in person, there will be stations with personal protective equipment, places to sanitize, and limits on just how many people are allowed into the hearing room, which will also be supersized.

But while there are ways to mitigate risk, there’s no way to eliminate it entirely, according to Albert Ko, department chair of epidemiology of microbial diseases at the Yale School of Public Health.

“Our general rule is that you’ve got that six-foot rule, but we try to reduce the time that people are in the same room,” Ko said. “If someone’s yelling or shouting or choir-singing, the six-foot rule breaks down because you can project” the virus. (That may happen: Graham, famously, erupted into a multiple-minute, high-volume tirade during Justice Brett Kavanaugh’s contentious confirmation hearing in 2018.)

After the testimony ends in Barrett’s confirmation hearing, the members of the Judiciary Committee must vote to bring the issue to a full vote on the Senate floor. The rules do let people vote on the committee vote by proxy, as long as a quorum of senators are “present,” according to the committee’s rules. Graham would need a majority to the committee to be “actually present” to report a nomination.

A spokesperson for Graham didn’t immediately respond to a VICE News inquiry about whether virtual participation counts as being “present,” or whether senators will need to vote in person.

But Graham also has pretty broad leeway to reshape the committee’s rules.

“But as a matter of committee rules, in practical terms, the chairman can kind of get around things, change the rules,” Arenberg said. “In my view, Graham will be able to get the nomination reported to the floor.”

It’s the full Senate floor vote that may pose more public health quandaries for McConnell. Under Senate rules, at least 51 senators must appear in person for the vote to happen, although they don’t all need to be on the chamber floor at once. Senators who oppose Barrett’s nomination could theoretically decide not to show up in an effort to prevent a quorum, but Arenberg said doing so would be a “pretty extreme step.”

Even if the senators worked out a system where they rotate into the room to vote, they could still face risks. The most common method of transmission likely occurs when someone passes droplets of the virus to another person—hence the need for social distancing—but the virus can be transmitted via surfaces, according to the Centers for Disease Control. On Monday, the CDC also updated its guidance on the coronavirus to acknowledge that people have contracted the respiratory illness through airborne particles that can linger on in the air and travel further than six feet.

“It’s basically elementary at this point that people should not be gathering in crowded indoor locations at any rate, but to introduce into a location like that, [where] people who either have known infections or known exposures to people with COVID-19, is such a flagrant foul,” said Carolyn Cannuscio, the director of research at the Center for Public Health Initiatives at the University of Pennsylvania.

Johnson, one of the senators who’s tested positive for the coronavirus, has already pledged to make it to the Capitol for the vote.

“If we have to go in and vote, I have already told leadership, I'll go in a moon suit,” Johnson told a local news outlet in Denver. "We think this is pretty important. People can be fairly confident that Mitch McConnell is dedicated to holding this vote.”

Two other Republican senators—Sens. James Lankford of Oklahoma and Ben Sasse of Nebraska—have gone into precautionary self-quarantine in recent days, after having contact with infected senators. Republican Sen. Shelley Caputo, of West Virginia, also went into quarantine in September after she announced that she’d been exposed to someone infected with the coronavirus.

“That’s high,” said Cannuscio. “And it indicates that there’s probably a concerning level of spread that may go beyond these individuals.”

At least nine guests and two journalists have tested positive for the coronavirus in the wake of the White House Rose Garden ceremony. The White House has reportedly refused an offer from the CDC to help contact trace the ceremony’s attendees, leaving questions about just how many people could be infected—including the numerous staffers who worked the event and may not be bold-faced names.

Then there’s the fact that, to get to the vote, senators would likely have to travel from their home states. Travel is now less safe than it was in the spring, because cases are on the rise again, according to Crystal Watson, senior scholar at the Johns Hopkins Center for Health Security.

“I would try to avoid travel that’s not kind of yourself in a car, if at all possible,” she said. “That goes especially for people who are at higher risk, that are of more advanced age, or have underlying conditions.”

The average age of a sitting senator, at the beginning of this congressional term, was 62.9 years, according to a recent Congressional Services Report. California Democratic Sen. Dianne Feinstein, the ranking member of the Senate Judiciary Committee, is the oldest sitting senator at 87.

Eight out of 10 reported U.S. deaths linked to COVID-19 have been among adults aged 65 years and older, according to the CDC.

“There’s no question in my mind that it would be irresponsible for people in either of those situations to travel on airplanes, trains, whatever in order to advance their political agenda,” Cannuscio said. “I think it’s a gross abuse of power and it shows such a vain indifference to other Americans and their lives and health.”

“Mitch McConnell should just wait.”

If the Senate isn’t able to vote ahead of the election on November 3, that doesn’t mean McConnell is out of luck. Instead, they could try to confirm Barrett in the lame-duck session after the nomination—even if the GOP loses control of the White House and Senate.

“The only cut-off date for the Senate to do business is January 3, when the new Senate takes office,” Arenberg said. “It’s possible that there could be enough delay created that it slipped into the lame duck. I don’t expect that to happen. I think McConnell will be successful in confirming this nomination prior to the election.”