Instead of beginning consideration on the first of five U.S. District Court nominees Monday as planned, Majority Leader Mitch McConnell won unanimous consent agreement to hold only pro forma floor sessions until Oct. 19.
The Kentucky Republican announced the plan this weekend after three of the chamber’s Republican lawmakers said they had tested positive for COVID-19 and several others said they would be self-quarantining after coming in contact with infected individuals.
Sens. Mike Lee of Utah, Thom Tillis of North Carolina, and Ron Johnson of Wisconsin announced in the past few days they had tested positive for the novel coronavirus and would self-isolate for at least 10 days. Oklahoma Sen. James Lankford and Nebraska’s Ben Sasse announced they would self-quarantine because of their contacts.
Senate rules dictate that a majority of members need to be present to conduct business. Typically senators waive the quorum requirement by unanimous consent, but without consent at least 51 senators would need to be physically present in the Capitol.
McConnell and Judiciary Chairman Lindsey Graham said the recess would not impact the Oct. 12 start of hearings on the Supreme Court nomination of Amy Coney Barrett. The Judiciary panel officially announced the hearings would begin Oct. 12 and continue through Oct. 15.
Both Tillis and Lee are members of the committee and said they would quarantine for 10 days, instead of the Centers for Disease Control-recommended 14, so they can return for the first day of the hearings.
Sen. Tim Kaine, D-Va., on Monday asked McConnell to modify his plan and to keep the Senate out until after Election Day, but McConnell objected. That keeps open the possibility that the Senate would vote on Barrett’s confirmation before the Nov. 3 election.
When the Senate reconvenes, the chamber will take up one of the U.S. District Court nominees teed up by McConnell last week. McConnell also said he would give senators at least 24 hours notice for any floor votes scheduled before Monday, Oct. 19.
Appearing on Fox News on Sunday, Minnesota Sen. Amy Klobuchar said that health concerns about spreading the coronavirus must be addressed before any hearing on Barrett were held.
Minority Leader Charles E. Schumer continued on that theme in a statement Monday, calling out Graham and saying there should be a thorough testing procedure before the committee met.
“Every Senator and relevant staff must have negative tests on two consecutive days and have completed the appropriate quarantining period, and there should be mandatory testing every day of the hearing,” Schumer said in the statement.
Sen. Richard J. Durbin, D-Ill., echoed Schumer’s call for more testing Monday, saying on CNN that “Congress should be testing and every member should have regular testing as well.”
Democrats’ options are limited on stopping the GOP from confirming Barrett, but Schumer said Sunday there are some ways it can be slowed down.
“We will have many more procedural options when it comes to a vote in the Senate committee and a vote on the floor, and we will use every tool in the toolbox to delay and not have the votes occur,” Schumer said.
Judiciary rules, for instance, require two members of the minority to be present for a vote in committee. If none appear, the committee quorum requirements won’t be met for a vote.
If Republicans want, they can suspend the rules and vote anyway. That happened in 2017 when the Committee on Environment and Public Works confirmed Scott Pruitt as administrator of the Environmental Protection Agency when Democrats boycotted the vote.
But if Republicans overcome procedural obstacles, there’s not much that can block an eventual confirmation vote.
Johnson, who appeared by telephone with talk radio host Ross Kaminsky in Denver Monday said Republicans aren’t likely to let the infections slow or stop a potential vote on Barrett, saying the committee should be able to manage with virtual hearings.
He reasoned that if people can go into a medical clinic and take precautions to keep people healthy, that’s possible in the Senate too.
“If we have to go in and vote,” he said, “I’ve already told leadership, I’ll go in a moon suit.”