Could the Coronavirus Derail the Supreme Court Confirmation?

“Do you realize everything that has happened in the past week?”, asked one of my clients.

Last Monday, the story was the President’s tax returns.

Last Tuesday, the story was the Presidential Debate between President Donald Trump and Former Vice President Joe Biden.

Last Wednesday, the fallout from the debate was the dominate story.

Last Thursday, the news broke that White House Aide Hope Hicks tested positive. Late Thursday/early Friday, the news broke about the President and First Lady.

One week ago, we learned that President Trump, First Lady Melania Trump and White House aide Hope Hicks tested positive for the coronavirus.

Over the past week, the news of positive cases as a result of the White House outbreak has rapidly increased.

Officials testing positive include:

  • President Donald Trump
  • First Lady Melania Trump
  • Senior Advisor to the President, Hope Hicks
  • Numerous attendees at the White House Supreme Court Nomination Ceremony on September 26 including Former New Jersey Governor Chris Christie, Former White House Advisor Kellyanne Conway, Republican National Committee Chairwoman Ronna McDaniel, Senator Mike Lee (R-UT), Senator Thom Tillis (R-NC)
  • Senator Ron Johnson (R-WI)
  • White House Press Secretary Kayleigh McEnany
  • President Trump’s Personal Aide, Nick Luna
  • Trump/Pence Campaign Manager Bill Stepien
  • White House Press Reporters

This week, we learned that top military leaders also tested positive for the coronavirus including officials in the Joint Chiefs of Staff and Senior White House aide Stephen Miller.

The full extent of the outbreak among top government and military officials is not yet known.

In fact, earlier today, I received a notice from the DC Department of Health asking individuals who attended the White House Supreme Court Nomination Rose Garden ceremony on September 26 “to contact their local health department for further guidance/questions regarding their potential need to quarantine.” According to the letter, nine local jurisdictions joined DC Health in asking ceremony attendees to contact their local health departments.

As the list of positive cases connected to the White House continues to grow, I find myself wondering how this coronavirus outbreak will impact the upcoming Supreme Court Confirmation schedule in the United States Senate.

As I’ve posted previously, the United States Senate Judiciary Committee is scheduled to begin confirmation hearings for Supreme Court nominee Judge Amy Coney Barrett on Monday, October 12.

Three United States Senators are among those who are currently COVID positive:

  • Senator Thom Tillis (R-NC)
  • Senator Mike Lee (R-UT)
  • Senator Ron Johnson (R-WI)

According to news reports, Senator Ron Johnson was not among those who attended the Rose Garden ceremony on September 26.

The other two Senators, Senator Thom Tillis and Senator Mike Lee are members of the Senate Judiciary Committee. There are 12 Republicans and 10 Democrats on the Senate Judiciary Committee.

With these two Republican Senators on the Committee testing COVID positive and now quarantined, any Committee action on Supreme Court Nomination will occur with a 10-10 Committee vote.

That’s a tie vote.

Will Senate Republicans be forced to delay the confirmation hearings until the two Senators are COVID free?

To date, Senate Republicans have shied away from virtual hearings – will that change to facilitate this nomination process?

For Senate confirmation, prior to 2017, three-fifths of the Senate, 60 members, agreed to end the debate over a Supreme Court nominee and take a final vote. This 60-vote threshold is called a “cloture vote”.

(Note: For more information on who cloture votes and filibusters work, this CRS Report explains it well.)

The traditional rules were thrown out the window in 2017.

Senate Democrats, who were in the minority, blocked Neil Gorsuch’s nomination preventing him from getting the required 60 votes.

Senate Majority Leader Mitch McConnell changed Senate rules to allow for a simple majority vote of 51 votes for confirmation. This rule change, often called the “nuclear option”, passed thus lowering the vote threshold for Supreme Court confirmation.

What does this matter? Post 2017, the party that controls the Senate, in this case Senate Republicans, control the entire Supreme Court confirmation process. The minority, in this case Senate Democrats, cannot stop the nomination as there are currently 53 Republican Senators.

(Check out last week’s post on the Supreme Court Confirmation Process)

Why is this process relevant now? Because Leader McConnell needs 51 votes to confirm Judge Amy Coney Barrett to the Supreme Court.

There are 53 Republican Senators to 47 Democrat Senators.

With these three Republican Senators quarantined, Leader McConnell only has 50 Republican votes

Not to mention two Republican Senators – Senators Susan Collins (R-ME) and Lisa Murkowski (R-AK) have said they do not support confirming a Supreme Court nominee before the election.

If the nomination comes to the Senate floor, will Leader McConnell move forward with the nomination?

How will the dynamics with these 5 Republican Senators impact the confirmation process?

The Senate is not in session this week. The Senate is scheduled to reconvene on October 19, so we will see what happens when the Senate is back in session.

Previously, Senate Judiciary Committee Chairman Lindsey Graham announced his intent to send Judge Amy Coney Barrett’s nomination to the Senate floor on October 22.

There is growing concern on Capitol Hill that more Members of Congress – House and Senate – will test positive or need to be quarantined due to contact with COVID positive colleagues.

There’s always an infamous October surprise before Election Day.

Is this COVID outbreak and President’s diagnosis the October Surprise that everyone expected?

Or is there more to come?

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