October 7, 2020
The Barrett-SCOTUS Nomination: Some Thoughts on Process
by Marty Paone
The Bottom Line
- If Senate Republicans are not impeded by the absence of Senators due to COVID-related quarantine, and factoring in procedural delays available to Democrats, Tuesday, October 27 is likely the earliest date by which Judge Barrett’s nomination can be confirmed by the U.S. Senate.
- While Senate Judiciary Committee hearings can be conducted virtually, committee members must be physically present to vote and a majority of committee members (12 of the 22-member committee) must be present to favorably report Judge Barrett’s nomination.
- In short, the GOP has little margin for error in its attempt to confirm Judge Barrett before the November 3 elections.
The President submitted the nomination of Amy Coney Barrett for the Supreme Court on September 29, and it was referred to the Senate Judiciary Committee.
Chairman Graham has announced that the Committee will conduct 4 days of hearings on her nomination beginning on October 12. The Committee can conduct its hearings via Zoom, but it needs to have its members physically present to vote to report out the nomination. If all 10 Democrats show up and vote no, Graham will need at least 11 Republicans to show up and vote Aye. If all 10 Democrats absent themselves from that meeting, the Republicans will need all 12 of their members present to vote her out because a majority of the committee needs to be present to report something out. The fact that the Senate will not be in session during the hearings, or at the time of the markup, does not impede the action of the Committee.
It’s been reported that Senator Graham wants to also schedule her markup for October 15. Expecting a request, as provided for in the Committee Rules, by a member of the Committee to hold it over for a week, he’s expected to reschedule it for Thursday, October 22.
The Committee ratio is 12 Republicans and 10 Democrats. It was reported on October 2 that two of the Republicans on the Committee, Senators Lee and Tillis, had tested positive for COVID-19. They have said they will quarantine themselves for the proper time. A markup on October 22 gives them 20 days to recover. If no other Republican members test positive, it’s expected that the Committee could report out Judge Barrett’s nomination on October 22.
If the nomination is reported out on October 22, Senator McConnell will probably convene the Senate later that day so the Committee clerk can deliver the reported nomination to the Senate’s Executive Clerk for placement on the Executive Calendar. A nomination needs to be on that Calendar for one calendar day to qualify for a motion to proceed. If it’s placed on the Calendar on Thursday, October 22 then on Friday, October 23 Senator McConnell can move to Executive Session to consider her nomination, a roll call vote can be requested on that non-debatable motion to proceed.
Once the nomination is pending, Senator McConnell can file cloture on the nomination for a cloture vote on Monday, October 26 (assuming he doesn’t want to work during the weekend.) If cloture is invoked on that day, there would be a maximum of 30 hours of debate on the nomination prior to her confirmation vote sometime on Tuesday or Wednesday, October 27 or 28th. This schedule can change depending on when Senator McConnell determines he has good attendance. Democrats can delay the vote somewhat by forcing votes on motions to adjourn or motions to postpone indefinitely, but eventually there would be a vote to confirm the nomination.
If more members of the Judiciary Committee come down with COVID so that the committee cannot report out the nomination in a timely fashion prior to the election, Senator McConnell could move to discharge her nomination – that motion can be delayed by the opponents to the following day and once made it is a debatable motion and can be filibustered. McConnell could try to overcome such a filibuster using the nuclear option to overturn the Chair, but he’d need good attendance for that vote.
Senator McConnell is a good vote counter and if he can’t win because he has too many out sick he would probably wait until the lame duck session for her confirmation vote.