Senate Republican leaders are plotting a quick confirmation vote for Amy Coney Barrett this month, confident that enough senators will return to give her a lifetime appointment to the Supreme Court and setting aside fears the spread of Covid-19 in GOP circles could derail the effort.
The move comes as Barrett – who has already spoken to more than two dozen GOP senators – is beginning to hear directly from Senate Democrats in private meetings about their concerns as the nominee gears up for contentious hearings set to begin Monday.
West Virginia Sen. Joe Manchin, who was the first Senate Democrat to meet with Barrett last week, told CNN that at the onset of the hour-plus meeting, White House counsel Pat Cipollone told him the federal judge would not be able to talk about matters that might come before her on the Supreme Court.
“I said, ‘I gotta have some idea on where she stands on things,’ ” Manchin said Wednesday, referring in particular about a GOP-led effort to dismantle the Affordable Care Act, which will be heard by the court a week after Election Day. “It makes it very difficult.”
Democrats’ effort to draw out her views – and draw attention to their fury that the nomination is being pushed just days before the election – is bound to play out during next week’s Senate Judiciary Committee hearings, which begin with opening statements Monday from the senators and witness, followed by two days of questioning by the senators. The panel, split between 12 Republicans and 10 Democrats, will begin proceedings to hold a vote on October 15. Under the rules of the committee, any member can delay a committee vote until October 22, which Republicans are expecting.
But the October 15 meeting could be scrapped altogether if Democrats boycott that session and if two of their members who are recovering from Covid-19 – Sens. Mike Lee of Utah or Thom Tillis of North Carolina – are still absent since a quorum is required for that meeting to take place. Republicans, then, would be forced to wait to have the initial post-hearing meeting until one of their GOP senators returns. Ultimately, committee rules state that there must be a majority of senators present to approve the nomination – something only possible if Lee or Tillis return.
Tillis, who is battling to win reelection in North Carolina, has expressed confidence he will return to the Senate by next week’s committee session as he recovers from the virus and his symptoms subside.
Lee’s status is less clear. His office has provided scant information about his condition. According to a Lee aide, the Utah senator feels better every day, and he plans to attend next week’s confirmation hearings either virtually or in-person depending on how he is feeling. But it’s still uncertain if he’ll return in person by October 15 when a quorum is needed to conduct the business meeting.
But both Tillis and Sen. Ron Johnson, a Wisconsin Republican who also tested positive last week, have sounded upbeat about their health, making GOP leaders confident they will have the votes to move ahead.
“We’re going to move forward on her nomination,” Senate Judiciary Chairman Lindsey Graham told CNN. “We’ll have a hearing safely. And I think she’ll be confirmed before the election.”
To do that, they will need to limit GOP defections and absences to no more than three senators since all Democratic senators plan to vote against the nominee. Already, two GOP senators – Susan Collins of Maine and Lisa Murkowski of Alaska – are expected to be “no” votes because of their concerns about the process being rushed before the election, though only Collins has explicitly said she would oppose the nominee.
Murkowski hasn’t said how she would vote – and her office said she’s reserving judgment until after she meets with Barrett.
“In 2016, Senator Murkowski met with U.S. Supreme Court nominee Merrick Garland,” said Karina Borger, a Murkowski spokeswoman, when asked if the Republican senator planned to vote against the Barrett nomination. “She plans to give this nominee the same courtesy and out of respect will not be commenting until at least after they meet.”
Yet if Murkowski and Collins both vote against the nominee, three more absences could scuttle the vote on the floor and potentially delay consideration until after Election Day. Republican leaders plan to plow ahead regardless – even in a post-election, lame-duck session and even if they lose their Senate majority and President Donald Trump loses the race for the White House.
But the fear among Republicans is that one or two GOP senators could change their minds in a lame-duck session if voters render a harsh judgment on their party at the polls in November.
So the plan for now is this: A vote to confirm her by the end of the month, just days before the election.
“Yeah, that’s the plan,” Senate Majority Leader Mitch McConnell said Tuesday when asked on Fox News about a pre-Election Day vote. “And there’s nothing I can see that would keep that from happening. We can operate successfully in a Covid environment. The Senate’s done that for quite some time. In fact, the current members who have a problem got it somewhere else, not here in the Senate.”
It’s unclear what gives McConnell confidence that none of the three members were infected in the Senate, especially since GOP senators dine daily together three days a week. Lee and Johnson were seen both in the same room at a Senate Commerce, Science and Transportation meeting last week.
On Wednesday, Senate Minority Leader Chuck Schumer and Minnesota Sen. Amy Klobuchar, the top Democrat on the Senate Rules Committee, called for new requirements that senators should quarantine for 10 days since symptoms last occurred and that a senator should produce two negative tests on separate days before returning to Capitol grounds. Moreover, Democrats demanded that senators who tested positive be banned from appearing on the floor or in committee until they prove they are negative.
Republicans have not embraced those calls. Leaving the floor Monday, McConnell wouldn’t answer a question from CNN about whether senators who have tested positive would be allowed to vote on the floor. Johnson told a radio host this week he would appear in a “moon suit” if he was positive and had to vote on Barrett’s nomination. McConnell’s office has not yet commented on the latest Democratic request.
With the Senate now out of session until October 19, Republicans are hopeful that senators will be cautious while they are at home.
CNN reached out to all 53 Republican senators this week to find out if they had been tested for coronavirus and got responses from 33.
Of those that responded, 18 said they had tested negative for the virus and 12 would not say if they have been tested or determined they were not exhibiting symptoms or didn’t have close contact with anyone with the virus. Three tested positive.
Of the 12 Republican members of the Judiciary Committee, seven reported testing negative, three said they had either not been tested, didn’t believe they needed to be based or declined to comment, and two were positive for coronavirus.
That means, unless something changes, a quarter of the GOP senators on the committee could show up at the hearing without the public knowing if they have been tested for the virus. It’s possible some of those will attend virtually but they have not said that yet. Those three Republicans are: Sens. Chuck Grassley of Iowa, John Cornyn of Texas and John Kennedy of Louisiana, whose office declined to comment about whether he’s been tested.
Those three senators were not present at the White House event introducing Barrett, where a number of attendees later tested positive, though they were in the Senate last week for meetings and votes.
The GOP members who reported testing negative are: Graham, Sens. Joni Ernst of Iowa, Ted Cruz of Texas, Ben Sasse of Nebraska, Josh Hawley of Missouri, Mike Crapo of Idaho and Marsha Blackburn of Tennessee.
Barrett pressed on health care, declines to say if she’ll recuse from election cases
In meetings with Manchin and GOP senators, Barrett has shed little light how she might rule on health care and has not agreed to recuse herself from any case involving the 2020 election results.
Democrats believe Barrett would strike down the Affordable Care Act because in a 2017 Notre Dame Law Review essay, she criticized Chief Justice John Roberts’ majority decision that upheld the law in 2012. Roberts’ surprise opinion has been roundly denounced by conservatives then and now.
“Chief Justice Roberts pushed the Affordable Care Act beyond its plausible meaning to save the statute,” Barrett wrote. “He construed the penalty imposed on those without health insurance as a tax, which permitted him to sustain the statute as a valid exercise of the taxing power.”
But when asked about that article, Barrett told Manchin she was laying out scenarios as law professor at Notre Dame.
“She said, ‘I give my law students a lot of different scenarios,’ ” Manchin said.
Speaking with Democratic Sen. Chris Coons of Delaware on Wednesday about the health care case, Barrett “wouldn’t specifically speak to a case or controversy that may come before the court,” the senator said.
“I pressed her on whether she considered them precedent that should be promptly reviewed or reconsidered,” Coons said. “She said she wouldn’t get into details of how she might rule.”
Manchin said he had conveyed to her the grave impact striking down the health care law could have on 800,000 West Virginians, as well as 160,000 people in his state who never had health insurance.
Asked about her response, Manchin said: “She couldn’t directly because she was instructed not to talk directly.”
“I think she had empathy and sympathy from what she’s hearing,” Manchin said. But Manchin, who was the lone Democrat to vote for Brett Kavanaugh’s nomination to the court in 2018, reiterated how he plans to vote against her because of his concerns about the rushed process to get her confirmed before Election Day.
Indeed, Manchin said he raised concerns about how no nominee has been confirmed to the court after July in a presidential election year, something he said the federal judge didn’t address directly. And he pointed to how Trump has made clear he wants a ninth justice confirmed to deal with any election disputes, something the West Virginia Democrat conveyed to Barrett would put her in a “very precarious situation.
Asked how she responded, Manchin said she told him: “I’ll do my job.”
On Wednesday, Coons asked Barrett if she would commit to recusing herself from any cases about the 2020 election results. Barrett instead laid out a list of factors she would consider in deciding if she needed to recuse herself from any case.
“I specifically asked her to recuse herself,” Coons said. “She made no commitment on recusal.”
Coons said he had raised concerns about the court’s role in the Bush v. Gore case, which effectively ended the 2000 presidential election.
“I just think we have a different view of that case,” he said.
CORRECTION: This story has been updated to correctly reflect the number of absent senators required in order to halt Barrett’s nomination.
CNN’s Lauren Fox and Ali Zaslav contributed to this report.