Amy Coney Barrett nomination: Could COVID-19 stop the vote?

With votes split down party lines, word that at least three Republican senators have tested positive for the COVID-19 virus have some asking if the GOP will be able to push through Amy Coney Barrett’s nomination to the U.S. Supreme Court.

Republican Sens. Thom Tillis (N.C.), Mike Lee (Utah), and Ron Johnson (Wis.), have all tested positive for the novel coronavirus, while three other Republican senators, Ted Cruz (Texas), James Lankford (Oklahoma), and Ben Sasse (Nebraska) have tested negative, but are quarantining since they were in the room with President Donald Trump when he was introducing Barrett as his nominee.

Trump tested positive for the virus and spent three days hospitalized at Walter Reed National Military Medical Center in Bethesda, Maryland.

Republican leadership could be faced with potential problems getting enough members well enough to come into the Senate to vote on Barrett’s nomination in a couple of weeks.

If the three senators with the virus and/or the other three who tested negative but are quarantining had problems voting in person, then Barrett’s nomination could be in jeopardy.

Here is a look at the timeline, what Democrats can do to slow it down, and rules on voting in the Senate.

When will the hearings start and a vote be taken?

The Senate Committee on the Judiciary is set to begin hearings on Barrett’s nomination Oct. 12.

While Lee and Tillis are on the Judiciary Committee, as is Sasse and Cruz, they do not have to be present in the room to participate in the hearing, nor to vote that the nomination be moved to the full Senate to be considered.

According to the rules of the committee, “When a recorded vote is taken in the Committee on any bill, resolution, amendment, or any other question, a quorum being present, Members who are unable to attend the meeting may submit votes by proxy, in writing or by telephone, or through personal instructions. A proxy must be specific with respect to the matters it addresses.”

To hold a vote

There are 12 Republicans and 10 Democrats on the Committee. The committee must have 12 of its 22 members, a majority of the members, present for a vote. The senators who are missing can vote by proxy.

If two Republicans were unable to vote in person, Democrats could thwart the vote by not showing up, thereby denying the Republicans a majority of the members in the committee, and stopping the vote.

In addition, at least two members of the minority party, in this case, the Democrats, must be present for a nine-person quorum to conduct business. Democrats have also threatened not to show up for that reason.

Building in some time in the process

On Tuesday, Sen. Majority Leader Mitch McConnell, R-Kentucky, said he will move to halt Senate floor activity until Oct. 19. McConnell said he will permit committees to continue with their work, remotely, if necessary. That would include the Senate Judiciary Committee, which holds hearings on Supreme Court nominees and recommends them – or not – for consideration by the Senate.

Judiciary committee rules and potential vote dates

While there are some procedural rules in the Senate Judiciary Committee that can slow down the nomination process, there is one, a “holdover,” that would slow it down significantly.

Any member of the committee can ask for a holdover, an additional week to consider the nomination before the committee votes to send it to the floor of the Senate for a full vote.

If the Democrats do request one, and there is no reason to think they will not, the committee vote would then likely come around Oct. 22.

Once the committee vote is taken and assuming the nomination is sent to the floor to be considered by the Senate as a whole, there are several tactics Democrats could use to delay the vote in the full Senate, although there is not one that can stop it outright.

Assuming the Democrats use those procedural moves, then the vote by the Senate could be pushed until the end of October.

Should there be any further delay, then the vote could be pushed until after the election on Nov. 3, something McConnell does not want.

The rules and procedures for voting

It is at this point that the COVID-19 virus could play a role in the outcome of the vote for Barrett.

Once the nomination has made it to the floor of the Senate, Republican senators would need a simple majority of those present to vote to stop debate over the nomination and bring the vote up for consideration.

If there are not enough Republican senators on the floor due to illness, that vote could fail.

If there are enough votes to end the debate, the nomination would move on to a vote by the full Senate.

According to rules of the Senate, senators must cast their votes on Barrett’s nomination in person. No senator is allowed to vote remotely or by proxy.

The numbers

There are 53 Republican senators and 47 senators who are either Democrats or caucus with the Democrats.

Two Republican senators – Susan Collins (Maine) and Lisa Murkowski (Alaska) – have said they will not vote for a nominee before the Nov. 3 election. That would leave 51 senate Republicans.

If three senators are unable to vote, the Republicans would not hold a simple majority and could not pass Barrett’s confirmation.

While many things can happen in the next weeks, the scenario is unlikely. Tillis told Fox News that he would “show up in a moon suit” to cast his vote, if necessary.