The coronavirus is adding a dose of uncertainty into the Senate’s fight over President Trump’s Supreme Court nominee.
Republicans have laid out an ambitious timeline to confirm Judge Amy Coney Barrett to the Supreme Court that’s left them only days to spare before the Nov. 3 election and no room for surprises.
The party now finds itself with six members absent this week – three because they tested positive for coronavirus and three who are working remotely due to potential exposure – capping the 53-seat GOP majority at 47 members for at least a week.
Complicating matters further, four of the six are members of the Senate Judiciary Committee, responsible for Barrett’s hearing and sending her nomination to the floor. Sens. Thom Tillis (R-N.C.) and Mike Lee (R-Utah) announced Friday that they had tested positive, while Sens. Ted Cruz (R-Texas) and Ben Sasse (R-Neb.) are working remotely until Oct. 12, the day Barrett’s hearing is scheduled to start.
In addition to Tillis and Lee, Sen. Ron Johnson (R-Wis.) also announced Saturday that he had tested positive and Sen. James Lankford (R-Okla.) is currently quarantining. Neither are on the Judiciary Committee.
All of that follows the bombshell that Trump – who has previously been criticized for downplaying the virus – tested positive for the virus, injecting a dose of chaos into the final weeks of an already historic, unpredictable election year. Trump has been at Walter Reed hospital since Friday, a move the White House says was done out of an abundance of caution.
Republicans are vowing to move forward with Barrett’s nomination under their original timeline: A days-long hearing that will start in the Judiciary Committee on Oct. 12, followed by a committee vote on Oct. 22.
“The Senate Judiciary Committee will convene on October 12th as Chairman Graham has scheduled to begin confirmation hearings for Judge Amy Coney Barrett’s nomination to the Supreme Court. The Senate’s floor schedule will not interrupt the thorough, fair, and historically supported confirmation process previously laid out by Chairman Graham,” Senate Majority Leader Mitch McConnell (R-Ky.) said in a statement.
Senate Judiciary Committee Chair Lindsey Graham (R-S.C.) quickly backed the GOP leader up, with his office saying that the panel “will proceed” with Barrett’s nomination on Oct. 12. Graham, in a string of tweets, also said that any senator who wants to take part in the hearing remotely will be allowed to do so.
But the push forward on Barrett’s nomination comes as McConnell is expected to try to gain consent on Monday to adjourn the Senate, absent brief pro forma sessions, until Oct. 19 in the wake of the spike in coronavirus cases among senators.
“On Monday, I intend to obtain a consent agreement for the Senate to meet in pro forma sessions for the next two weeks. Previously-scheduled floor activity will be rescheduled until after October 19,” McConnell said in a statement, roughly a day after he shot down a question about keeping the Senate out of session this week.
Democrats have not yet said if they will greenlight the Senate heading out of town until Oct. 19, given that Republicans still appear set to start Barrett’s hearing on Oct. 12.
Senate Minority Leader Charles Schumer (D-N.Y.) argued during a press conference in New York on Sunday that Republicans were risking public safety in order to rush Barrett’s hearing, which he said should be delayed.
“Mitch McConnell seems to be jamming through the hearings on Amy Coney Barrett even though three senators have COVID, even though he has said it’s not safe for the Senate to meet in session but it’s okay to have the hearings, it makes no sense,” Schumer said.
“For Mitch McConnell to go ahead with the hearing, endangers the safety not only of senators, but of staff …there is no reason in god’s green earth why they shouldn’t be delayed,” Schumer continued, adding that a “virtual hearing is virtually no hearing at all.”
Democrats are powerless to stop Barrett’s nomination without the help of four Republican senators.
But McConnell’s push to change the schedule, and the absence of several GOP senators, could give them procedural leverage.
Both Lee and Tillis, based on timelines provided in their statements, expect to be back in the Judiciary Committee in time to vote on Barrett’s nomination on Oct. 22. But if they are absent it would deadlock the committee at 10-10, and unlike on the floor there is not a tie breaker meaning that a nomination would not advance.
Video: Lawmakers, pundits react to President Trump’s positive coronavirus test (The Washington Post)
Though Lee and Tillis could normally vote by proxy, those votes do not count when they change the outcome of the vote, according to committee aides.
“We will have many more procedural options when it comes to a vote in the Senate committee and a vote on the floor and we will use every tool in the toolbox,” Schumer added on Sunday.
If Republicans have a simple majority they will be able to overcome Democrats delay tactics on the floor.
Sen. Tom Cotton (R-Ark.) signaled in a Fox Business interview that senators were either COVID-19 positive or quarantine due to exposure could be brought in specifically to vote on the Supreme Court nomination, underscoring the importance Republicans are putting on getting Barrett confirmed before the election.
“I think every senator who’s currently tested positive or is in isolation will be back to work under normal conditions … but, if that’s not the case, there is a long and venerable tradition of ill or medically infirm senators being wheeled in to cast critical votes. …So I’m confident that every senator will be in attendance when his or her vote is needed,” he said about a vote on Barrett’s nomination before the full Senate.
Before Lee, Tillis and Johnson only two senators were known to have tested positive for the coronavirus: Sens. Rand Paul (R-Ky.) and Bill Cassidy (R-La.), who tested positive in March and August, respectively. Sens. Tim Kaine (D-Va.) and Bob Casey (D-Pa.) previously said they tested positive for coronavirus antibodies, suggesting they had previously been exposed.
The uptick in cases among senators, and questions about potential exposure amongst their colleagues, has put a spotlight back on a fact of Capitol Hill life in the coronavirus: That there is not a formal testing program.
Several lawmakers have clamored in the wake of Trump’s diagnosis to implement regular testing for lawmakers, as well as the cadre of staff and press they are in frequent close contact with.
House Majority Leader Steny Hoyer (D-Md.) discussed the issue with House Speaker Nancy Pelosi (D-Calif.) last week, though he said no decision has been made.
Several Senate Democrats are calling on McConnell to ramp up testing. Members of McConnell’s own caucus, including Sens. Roy Blunt (R-Mo.) and Lamar Alexander (R-Tenn.), have called for regular testing in the Capitol given lawmakers frequent travel back to their home states.
But the GOP leader defended the Senate’s current practices, while speaking at a hospital in Kentucky on Friday. The leader declined to say if he had been tested during the past week.
“We’re following the advice of the CDC in how we operate the Senate and so far we’ve been able to do it quite successfully,” McConnell said.
Congressional Democrats and the administration are continuing negotiations on a fifth coronavirus package, talks that gained new urgency in the wake of Trump’s diagnosis.
“This kind of changes the dynamic because here they see the reality of what we have been saying all along: This is a vicious virus, and it spreads,” Pelosi said during an appearance on MSNBC on Friday.
The two sides are still haggling over a price tag for a bill, which has been a months-long sticking point.
House Democrats, last week, passed a $2.2 trillion stimulus package-down from the $3.4 trillion they passed in May.
Treasury Secretary Steven Mnuchin has offered $1.6 trillion-but that number is viewed as too low by Democratic leadership and too high by Senate Republicans, who appeared lukewarm, and in some cases outright opposed, late last week to spending that much money.
But underscoring the growing need for a deal, Mnuchin and Pelosi met for the first time last week since august. And they spoke on Friday, as well as twice on Thursday.
McConnell, who appeared pessimistic about the chances for a quick deal early last week, on Friday said that he thought talks were “closer to getting an outcome.”
“I’m trying to figure out here whether I should predict another bill quickly or not. But the talks have speeded up in the last couple of days,” he added.
Before McConnell announced that he would try to alter the Senate’s schedule, he had teed up votes on his favorite topic: judicial nominations.
McConnell teed up votes on Michael Newman to be district judge for the Southern District of Ohio, Philip Calabrese and James Knepp to be judges for the Northern District of Ohio, Aileen Cannon to be judge for the Southern District of Florida and Toby Crouse to be a judge for the District of Kansas.
If McConnell can delay the Senate’s schedule, those would be delayed. He did not say in his statement if he will still hold votes this week if Democrats don’t agree to the pro formas, but senators are expected to get a 24-hour notice before they are needed back in Washington to vote.