Stopping Mitch McConnell from his latest SCOTUS power grab will take an act of providence even with three GOP senators sidelined by COVID-19 and Senate rules requiring an in-person vote to advance the nomination of Amy Coney Barrett and then confirm her before the election.
There is nothing McConnell won’t do to get Barrett on the Supreme Court. If senators infected with COVID can’t be in Washington, he could change the rules about in-person voting, just for SCOTUS nominations, the same way he deployed the so-called nuclear option to end the filibuster so he could confirm Justices Gorsuch and Kavanaugh with fewer than 60 votes.
“They (Senate Republicans) could nuke the phrase or re-interpret it for Supreme Court nominations. They’ll have to finagle their way around it,” says Sarah Binder, an expert on Senate rules with the Brookings Institution.
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Two of the three GOP senators quarantined by COVID—Thom Tillis and Mike Lee—are on the Judiciary Committee. Both attended the Saturday Rose Garden event where Barrett was introduced by President Trump. Multiple attendees have been diagnosed with COVID, including President Trump, turning the celebratory occasion into an ominous superspreader.
Judiciary Committee rules require 12 senators for a quorum. There are 12 Republicans and 10 Democrats on the committee. Tillis and Lee can participate remotely in Barrett’s hearing beginning Monday, Oct. 12 and could be out of quarantine and able to vote in person after the hearings conclude on Thursday to send the nomination to the floor.
McConnell has little margin for error with a third senator, Ron Johnson, testing positive for COVID. With 53 Republicans plus Vice President Mike Pence to break a tie, McConnell can lose three and still confirm Barrett with 50 votes. Susan Collins and Lisa Murkowski oppose a vote before the election (though Collins often folds if her vote is needed).
On the Judiciary committee, all 12 Republicans are needed for a quorum, and the rules require two members of the minority party to be present for the vote. The Democrats could boycott the vote, but the assumption is that Judiciary Chair Lindsey Graham with McConnell’s blessing would disregard the rule and hold the vote without Democrats present, or skip the committee vote and take the Barrett nomination directly to the floor.
“It would be contradictory to anything that’s been done in the Senate, but the assumption is that McConnell will do whatever it takes to get this nomination done, and that includes trampling on Senate norms and traditions, and any rules in committee that stand in his way,” says Ira Shapiro, a former Senate aide and author of Broken: Can the Senate Save itself and the Country?
Graham is fully complicit in changing the rules. Sara Binder with Brookings recalls an episode in 2019 with an immigration measure he wanted out of committee. There weren’t two Democrats present, but that didn’t stop Graham. He ignored the rule. C-Span captured a furious Patrick Leahy saying of the rules, “I’d like to think they mean something… I’d like to think we can rely on them. But even though every Republican and Democrat voted for ’em, these rules are on the verge of becoming meaningless.” He then ripped up a copy of the Senate rule book.
There’s never been remote floor voting in the Senate. There’s been proxy voting in some committees, but never in Judiciary. Each committee has some discretion to set its own rules but can’t contradict the Standing Rules of the Senate. The Senate rule that matters here is how many senators need to be present—a majority must be physically present in order to vote out a recommendation or a nomination, according to Rule 26, Clause 7, according to Binder.
Everything we know says McConnell wants Barrett confirmed before the election. The Republican base is corporate elites and cultural conservatives, “so if you’re attentive to your base, you give red state senators a vote they can take home—and swing state senators, like Cory Gardner (in Colorado), maybe it’s his Hail Mary,” says Binder. “It seems like full speed ahead.”
The clincher is that McConnell sent the Senate home for two weeks after Trump’s COVID diagnosis when he had nine young conservative judges teed up and ready to confirm for lifetime seats. He put them aside in the hope of keeping senators healthy to vote for Barrett, the crown jewel in his push for judges, the SCOTUS pick that cements a conservative majority for decades to come.
Democrats have to decide how much of a fight they put up if the only way they can win is if more Republican senators are sickened and sidelined by COVID. “Mitch McConnell is steamrolling Senate rules and norms to jam this nominee onto the Court. He doesn’t care if it costs him his majority, or even if Senate members and staff fall ill with a deadly disease, so long as big Republican donors get their sixth justice to undo the protections of the Affordable Care Act and Roe v. Wade,” Democrat Sheldon Whitehouse, a member of the Judiciary committee, said in an email to the Daily Beast.
In mid-March, Ohio Republican Rob Porter and Democrat Dick Durbin introduced a measure to allow virtual remote voting on the Senate floor. McConnell wanted nothing to do with it, a decision he might regret if more senators are affected by COVID and forced to quarantine.
On the House side, Speaker Nancy Pelosi resisted virtual voting but agreed to trigger a rule that allows absent members to vote by proxy during a 45-day period when there is a health emergency. House Republicans filed a lawsuit calling the move unconstitutional. A Federal judge dismissed the case.
McConnell could change his mind and support remote voting should it become necessary to secure the votes to confirm Barrett. Everybody would yell hypocrisy, but he’d still get his SCOTUS super majority. He is shameless. Hypocritical is not the worst thing he’s been called.
Half a dozen SCOTUS confirmations happened in an election year, one as late as July, but never this close to the election, after people started voting, and when the president and the Republican Senate appear to be on the brink of historic repudiation.
McConnell believes correctly that the courts are his legacy, and that’s why he has pushed so many young judges into the system. “It’s not just Roe v. Wade and the ACA,” says Shapiro. “It’s judges who will rule against minorities, workers, consumers—anybody who relies on government.”
In the eyes of Democrats and those who want government to work more broadly on behalf of the people, there is no more malevolent figure in our government than McConnell. And now he is poised to ram through a lifetime SCOTUS pick in the waning days of an impeached president and in the midst of a pandemic.
