Why Barrett may not be confirmed before Election Day

Carl Gibson, The Independent

COVID-19 has waylaid not just President Trump and several members of his inner circle, but also numerous Senate Republicans determined to give Trump his third Supreme Court confirmation in as many years. As of Monday, three Republican senators — Ron Johnson, Mike Lee and Thom Tillis  — have tested positive and are in quarantine. When combining this sudden development with possible avenues for procedural warfare, the fight to confirm Amy Coney Barrett as the late justice Ruth Bader Ginsburg’s replacement on the US Supreme Court will be a bitter one.

Senators Lee and Tillis are also members of the Judiciary Committee, meaning that their votes are needed not just to confirm Barrett on the Senate floor, but also to pass her nomination out of committee — an unavoidable first hurdle on the way to a confirmation vote. If neither has recovered by the time the Senate returns on October 19, the committee would be theoretically deadlocked with 10 Democrats and 10 Republicans. However, Senate Judiciary Committee rules do allow members to vote by proxy, so Lee and Tillis could call into session to vote by phone, or send in a “yea” vote in writing.

The 10 Democratic members of the Judiciary Committee could feasibly try to deny a quorum for the committee to meet, but under Senate Rule XXVI, paragraph 7, subparagraph 3, reporting something out of committee to get onto the Senate calendar only requires “a concurrence of a majority of the members of the committee who are present.” While Judiciary Committee quorum rules do stipulate that at least two members of the minority have to be present for there to be a quorum, there’s nothing stopping committee chairman Lindsey Graham from changing those rules with a majority vote. And Senate rules are set up to allow committees to dictate their own way of conducting business.

This means that barring extraordinary unseen circumstances, Amy Coney Barrett’s nomination will move to the Senate floor for an up-or-down vote. This is where Democrats could employ a number of strategies in an attempt to stall the confirmation vote until Election Day.

Consideration of a Supreme Court nomination is considered “executive business,” according to a Capitol Hill source intimately familiar with Senate procedure. This means Senate Democrats would first have to motion to have the Senate adjourn executive business and proceed instead with legislative business. Because Democrats are outnumbered 53-47, this motion could be easily defeated. Even if Senators Susan Collins and Lisa Murkowski — who are both on the record opposing the confirmation process until after the election — sit out the process, Democrats will still fall short of a majority.

However, the wild-card of multiple, ongoing Covid diagnoses may prevent Senate Republicans like Ron Johnson, Mike Lee, and Thom Tillis from being on the floor, meaning Democrats could still feasibly succeed with a motion to move forward with legislative business.

One legislative strategy detailed by The Intercept’s Ryan Grim is to utilize Rule XIV. Senate Minority Leader Chuck Schumer recently invoked this rule to bypass the committee process and put a healthcare-related measure on the Senate calendar for consideration.

“My recollection is that under rule XIV, any senator can bring a bill to the calendar,” former Senate Minority Whip Jon Kyl (R-Arizona) told The Independent in a phone interview. “There are some requirements, but I don’t recall any restrictions on any senator being able to do that.”

The “requirements” Kyl alluded to are that a measure must be on the Senate calendar for at least two legislative days before a motion to consider the matter can be introduced. Grim broke down the strategy for how Rule XIV could be utilized to gum up the works after obtaining a memo that was circulating among Democrats on Capitol Hill: “Any Senator can have any legislative measure placed on the calendar in two legislative days under Rule XIV.  Leader Schumer could ask every Democratic Senator to introduce bills on their favorite subjects en masse and seek to put them on the calendar via rule XIV.  Once they were on the calendar two legislative days later, if Schumer could get the floor, he could move to proceed to each in turn, file cloture, withdraw his motion to proceed, move to another, file cloture, withdraw his motion to proceed, and continue to repeat, stacking up an almost endless series of votes on motions to invoke cloture on motions to proceed to Democratic priorities, until the Majority Leader shut the Senate down.”

“All of that is possible — with Mitch McConnell’s tacit agreement to adjourn,” Alan Frumin, who served as the Senate’s Chief Parliamentarian for nearly two decades, said. “The rules of the Senate are largely set by the majority, and the majority typically acts through its leader.”

“A legislative day in the Senate changes only when the Senate adjourns from one day to the next. The Senate doesn’t always adjourn from one day to the next,” Frumin added. “The Senate can recess. And when the Senate recesses, the legislative day does not change... If the Senate stayed in session around the clock for 10 days, the legislative day would not change. The decision as to whether the Senate will recess or adjourn at the end of the day is the Majority Leader’s decision. So if Mitch McConnell didn’t want Chuck Schumer to bypass the committee, McConnell could delay adjourning and prevent the process of Rule XIV from working to the limited extent that it does work.”

Senate Democrats may instead seek to deny McConnell a quorum, given that two of the Senate’s 53 Republicans are opposed to taking action before Election Day, three more are currently in the throes of coronavirus, and 51 Senators need to be present for there to be a quorum. As Majority Leader, Mitch McConnell has the power to dispatch the Senate’s Sergeant at Arms to track down absent senators, arrest them, and physically force them onto the floor to have a quorum.

This hasn’t happened since 1988, when Senator Robert Packwood was carried feet-first to the Senate floor by then-Sergeant at Arms Henry Guigni.

When asked about whether or not a quorum strike would stall Amy Coney Barrett’s confirmation, Packwood was doubtful. However, he did admit that it would be challenging to get enough votes to confirm Barrett if multiple Republican senators were still in quarantine.

“They can get it out of committee with proxy votes, but they can’t get it through the Senate with proxy votes,” Packwood said.

The prospect of impeaching President Trump for the second time this year is also a possibility. House Speaker Nancy Pelosi notably refused to rule out impeachment following Justice Ginsburg’s death in late September. However, Frumin stated that impeachment as a delay tactic may not be as effective as some pundits may imagine.

McConnell has signalled the Senate would gavel back in on October 19, a mere 15 days before the general election. He’s expected to move forward immediately with Amy Coney Barrett’s confirmation process, despite a recent Hill-HarrisX poll showing that 74 per cent of Americans (including 55 per cent of Republicans) want the Senate to first consider another coronavirus stimulus bill instead.