September 26 was a festive day for Republicans in Washington. Under overcast skies, President Donald Trump strode to a podium in the White House Rose Garden to introduce Judge Amy Coney Barrett as his nominee to replace the late Supreme Court Justice Ruth Bader Ginsburg. A military band played “Hail to the Chief,” and about 150 guests, including senior members of the Republican Party, the president’s Cabinet, and the Senate, sat shoulder to shoulder and mostly without masks as they cheered the nomination of a 48-year-old conservative to a lifetime seat.
The mood was upbeat in part because Barrett appeared to have the votes for confirmation before the president ever uttered her name. In the previous few days, Senate Republicans, one after the other, had announced their support for Majority Leader Mitch McConnell’s plan to ram Trump’s nominee through their chamber in the five weeks before Election Day. Barrett’s confirmation would give conservatives a 6–3 majority on the Supreme Court and a lasting insurance policy in case Trump lost his bid for a second term.
Just over a week later, Trump’s Rose Garden event suddenly seems far more ominous, and the idea of Barrett’s preelection confirmation is in doubt. What had been a celebration now appears, in retrospect, to have been a super-spreading catastrophe. The president is hospitalized with COVID-19, and several infections of high-ranking government and Republican Party officials have been plausibly linked to the event. Among those who have taken ill are the chair of the Republican National Committee, Ronna McDaniel; the president’s campaign manager, Bill Stepien; the current and former Trump advisers Hope Hicks and Kellyanne Conway; and the president of the University of Notre Dame, John Jenkins.
The coronavirus cases that could prove most problematic for the GOP’s chances of confirming Barrett are a trio of Republican senators: Mike Lee of Utah, Thom Tillis of North Carolina, and Ron Johnson of Wisconsin. Lee and Tillis, who both serve on the Judiciary Committee, were at the White House last Saturday and later reported testing positive for the virus, while Johnson said in a statement today that he had been exposed to the virus in D.C. later in the week.
Republicans have a 53–47 majority in the Senate, but two of their members, Senators Susan Collins of Maine and Lisa Murkowski of Alaska, have said they oppose holding a vote to confirm a Supreme Court justice before the election. The Senate isn’t expected to hold a final vote until the end of the month, but were Lee, Tillis, and Johnson to be absent, Republicans wouldn’t have a majority to approve her without the support of Collins and Murkowski. (All 47 Democrats are likely to vote no, in part out of anger that McConnell plans to jam a nominee through after he refused to hold a vote on President Barack Obama’s nomination of Judge Merrick Garland in 2016.)
It’s also possible that more Republican senators will come down with the virus in the next few days; multiple GOP lawmakers are now quarantining after having been exposed to their colleagues or others who are infected. Unlike the House of Representatives, which changed its rules because of the pandemic to allow lawmakers to cast votes remotely, senators must be physically present on the floor to vote.
McConnell has made no secret of the fact that his top priority in the coming weeks is to confirm Barrett, at seemingly any cost. Republicans have said a full Supreme Court might be needed to decide election-related cases, and in a further signal of his intentions, the majority leader said he discussed Barrett’s confirmation during a phone call with the hospitalized president today. He also announced that the Senate would recess for the next two weeks—a move apparently designed to protect his members from further exposure inside the Capitol and ensure that his conference is healthy enough to vote on Barrett before the election. At the same time, he and Senator Lindsey Graham, the chair of the Judiciary Committee, announced that even though the full Senate would be out of town, Barrett’s confirmation hearings would take place as scheduled beginning October 12. Under the Senate’s pandemic rules, Lee and Tillis could participate virtually if they were not cleared to attend in person.
Senate Democrats immediately protested, writing in a letter to Graham that “to proceed at this juncture with a hearing to consider Judge Barrett’s nomination to the Supreme Court threatens the health and safety of all those who are called upon to do the work of this body.” Yet the Democrats don’t have the votes, alone, to block her nomination until after the election.
The crucial step for Republicans is likely not the hearings but the committee vote, which requires senators to be physically present to achieve a quorum, according to Sarah Binder, an expert on congressional procedure at the Brookings Institution. If Lee and Tillis weren’t there, Democrats could boycott the hearing and block the vote. But Graham and McConnell could delay a committee vote until a few days before the full Senate vote at the end of the month, buying Lee and Tillis more time to recover. McConnell could try other options, such as replacing Lee and Tillis on the Judiciary Committee, or bypassing the panel entirely, but each of those would require majority votes on the Senate floor that he might struggle to win.
Until the past few days, the Democrats’ hopes of stopping Barrett’s nomination rested on a likely futile effort to shame GOP senators out of exercising the full weight of their power to cement a durable conservative majority on the Court. Republicans are trying to accelerate her nomination because they know Trump could lose the election, and their chances of cobbling together enough votes in a lame-duck session after Americans have rejected their party leader would be dicier still.
Republicans, however, now face a more complicated path to a Supreme Court confirmation, one imperiled by their own laxity toward the pandemic. Lee, Tillis, and Johnson might well recover in time to vote for Amy Coney Barrett (and the Senate COVID-19 outbreak could stop with them). But for the moment, although Barrett has the support of Republicans to win a seat on the Supreme Court, she doesn’t have the votes.