The Senate went into recess Monday afternoon following the news that at least three Republican senators were waylaid with Covid-19. It was the latest in an ongoing parliamentary battle whose outcome could shape both the judiciary and the Senate for years to come. Senate Majority Leader Mitch McConnell had a near-invincible upper hand in the fight, but now his control is far from certain amid the virus outbreak, which seems to have been spread rapidly by the very ceremony that kicked off the confrontation: a reckless White House party to celebrate the nomination of Judge Amy Coney Barrett.
McConnell, who has not said whether he’s taken a Covid-19 test, has made clear his unyielding determination to brush aside any norm or obstacle to implant Barrett into the Supreme Court. To make that happen before the election — or, in the event of a loss by Donald Trump, before the president leaves office — McConnell has two major hurdles to clear. The first is a vote in the Senate Judiciary Committee, chaired by Sen. Lindsey Graham, a South Carolina Republican facing a surprisingly close race for reelection. On Monday, McConnell said a Judiciary vote would likely happen by October 16. The second is a floor vote, which McConnell has pledged to hold as quickly as possible after the nomination clears the committee. A floor vote is eyed for sometime around October 26.
Within moments of the news of Justice Ruth Bader Ginsburg’s passing, progressives both in and out of Congress began pushing Senate Minority Leader Chuck Schumer to be as aggressive as possible in blocking Barrett. Rep. Alexandria Ocasio-Cortez teamed with Schumer for a press conference outside the Brooklyn high school where both he and Ginsburg graduated. Ocasio-Cortez pressed the point, urging Schumer to use “every tool” at his disposal.
The pressure has continued. On Monday, a coalition of mostly New York-based progressive groups launched a video pushing Schumer to give everything he has to the fight against Barrett, narrated largely by constitutional law professor Zephyr Teachout.
We're calling on @ChuckSchumer to do everything in his power to disrupt, delay and delegitimize this sham SCOTUS nomination process.— CPD Action (@CPDAction) October 5, 2020
We are demanding Senate D's stand up and fight for workers, immigrants, our families and our communities. Watch the video below ?? pic.twitter.com/3YgRmjHje6
The video followed a long weekend of wall-to-wall calls and video meetings between Schumer, his senior staff, and the various outside progressive groups engaged in the confirmation battle. Former Senate Majority Leader Harry Reid cultivated strong relationships with the party’s outside progressive organizations and its grassroots activists, and even as they didn’t always agree on strategy or tactics, there was a sense that both camps were part of the same effort. Schumer has always had a more arms-length relationship with those same outside forces but now is making an effort to close that gap.
The attempted alliance is different in degree from the relationship between Schumer and outside groups during the push to confirm Brett Kavanaugh to the Supreme Court. Schumer had initially argued privately that the fight against Kavanaugh was unwinnable, and the protests in the Capitol would only hurt Democratic senators up for reelection in conservative states, such as Joe Donnelly in Indiana, Claire McCaskill in Missouri, Joe Manchin in West Virginia, and Jon Tester in Montana. Indeed, McCaskill and Donnelly lost their elections, and McCaskill continues to blame the Kavanaugh confirmation for her 6-point loss to Josh Hawley. (Donnelly also lost by six, while Tester and Manchin won.) Republicans, meanwhile, both in office and around the country, continue to express outrage at the unfair way they claim Kavanaugh was treated.
This time around, the pandemic has dampened the appetite for protests in the Capitol, but Schumer has flexed some muscle on the Senate floor. Late last month, he managed to momentarily seize the floor and call a bill to protect the Affordable Care Act to the floor, forcing a vote. Democrats have made protecting health care reform the main weapon to wield against the nomination of Barrett, as the Supreme Court is scheduled to hear a case that could obliterate the Affordable Care Act the week after the election.
Over the weekend, Schumer had been pressed to block McConnell’s attempt to adjourn and instead force the Senate to remain in session, or even seize full control of the floor by massing more Democrats than Republicans have available.
Democrats sent Sen. Tim Kaine of Virginia, who had the coronavirus in March, onto the floor to safely (we assume) jockey with Senate Majority Leader Mitch McConnell, R-Ky., over the adjournment. Kaine, acting on Schumer’s behalf, did not go that far, and instead made a motion to modify McConnell’s adjournment resolution, suggesting instead that the Senate be kept in recess through the election. McConnell objected and moved his initial motion for recess again, which was accepted this time without objection. In a concession to Schumer, McConnell withdrew five federal judges from the calendar that he had submitted last week, meaning he’ll have to add them back, taking more time, when the Senate returns.
The upside of adjourning is that it allows for Senate personnel to decamp from what has become a toxic hotspot. The upside of keeping the Senate in, and forcing McConnell to repeatedly attempt to adjourn, would have been to give Democrats the opportunity to highlight Republicans’s unwillingness to work on legislation to address the economic and public health crisis caused by Covid-19. Since Barrett has yet to move through committee, any floor action at this point is primarily tied to messaging, as the real fight to slow down or stop her nomination begins when she arrives on the floor. Schumer, in agreeing to the adjournment, signaled that he didn’t see the messaging value in keeping the Senate open the next two weeks.
Had Democrats fought to keep the Senate in session, they wouldn’t have been able to seize control, even if all their members were present, because there wouldn’t be enough senators to form a quorum. The Constitution requires 51 of the 100 be present, and Democrats only control 47 seats. The quorum call would fail, and the Senate would be adjourned until the next day, a process that would repeat itself until a quorum was found. Leaders of legislative bodies in the past have sent police officers after lawmakers refused to attend sessions in order to deny a quorum, both in Congress and in state capitals.
Committee rules require that at least two members of each party be present for a committee to conduct business, meaning that if Democrats boycotted the Barrett hearing, the rule would bar a hearing. But in practice, Graham can — and in the past, has shown a willingness to — change those rules to plow ahead. Indeed, the hearing may move faster without Democrats if they boycott, undercutting the effort to slow the process down.
Currently, two Republican members of the Judiciary Committee have tested positive for Covid-19 — Sens. Thom Tillis of North Carolina and Mike Lee of Utah — along with a third Republican not on the committee, Ron Johnson of Wisconsin. Graham has said that those committee members, who are quarantining, can participate by video if they so choose, with a vote aimed at October 16. Republicans hold a 12-10 majority on the committee, which is allowed to meet even as the Senate is in recess.
Under the new floor schedule, the Senate will return on Monday, October 19, at 4:30 p.m., with the first order of business the nomination of Michael Jay Newman for district judge in Ohio. On that day, McConnell, if Barrett is through committee, will also attempt to begin the process of confirming Barrett on the Senate floor. McConnell would need 51 senators present for a quorum. (The vice president does not count toward a quorum.)
When it comes to the floor vote, McConnell has a distinct parliamentary advantage, as the majority leader, by rule, is recognized first each day in the chamber. The right of recognition, combined with a majority and a willingness to change the rules midstream, as he did to confirm Justice Neil Gorsuch, gives real power to the majority leader. Democrats have many tools at their disposal, but McConnell also has the ability to respond, but only if he can marshal his forces.
That majority is now tenuous, with three members confirmed to have Covid-19, and others, such as Judiciary Committee member Chuck Grassley, refusing to get tested. And both Sens. Lisa Murkowski of Alaska and Susan Collins of Maine have said that it is inappropriate to go forward with a vote before the election. If they joined with Democrats to deny a quorum, they would be able to put their assertion into action. “If ever there’s a moment to bring out things they’ve never even thought about before,” argued David Segal of the group Demand Progress, which has also been urging Schumer to do everything he can to delay the Senate, “things they’ve never done before, now is the time to do it.”