Thread by @ChadPergram

1) One dominating factor could delay the confirmation of Amy Coney Barrett for the Supreme Court: coronavirus.

2) 3 senators – 2 of whom are mbrs of the Judiciary Cmte – tested positive. Some senators will attend Barrett’s confirmation hrngs in person next wk. Some will beam in. But there is no requirement for senators to be there to actually pose questions to the nominee

3) But, lingering quarantines or additional positive cases could pose problems for a speedy confirmation of Barrett. The first issue comes in the Judiciary Committee itself.

4) Judiciary Committee Chairman Lindsey Graham (R-SC) has long said he intends to conduct a vote on the nominee in committee on October 22.

5) Committee rules require a quorum of the 22 members of the committee be present to conduct a “markup” session for the nominee. A “markup” is where the senators vote on the Barrett nomination at the committee level.

6) Imagine for a moment there are additional problems with attendance due to quarantine or COVID-19 cases. The committee MUST have a physical majority present to conduct business. No quorum? No markup. Things are stalled.

7) This raises questions. Let’s say the issues with attendance are on the GOP side of the aisle due to health/quarantine. Democrats could potentially help Republicans constitute a quorum to do business. Or…would Democrats really do that?

8) If Democrats truly want to hold up the process and Republicans lack the physical presence to get a quorum, why would Democrats actually show up to the markup?

Such a delay could be a problem for Republicans. No quorum…and the nomination is stuck in committee.

9) However, let’s say Democrats do decide to help provide a quorum. They COULD then force the Judiciary Committee to report out the Barrett nomination with “no recommendation” to the floor or even an “unfavorable recommendation.”

10) In other words, the cost of doing business for absent Republicans could be Democrats stymying the other side from reporting out the nominee to the floor with a “favorable” recommendation. Otherwise, the nomination is stuck in committee and can’t get to the floor.

11) Senators can vote by proxy in committee. But a proxy vote cannot be a determinative vote. Otherwise, a nomination remains bottled up in committee.

12) The practice of sending Supreme Court nominees to the floor with less-than-stellar Judiciary Committee recommendations is not without precedent.

13) In 1991, the Judiciary Committee sent the nomination of Supreme Court Justice Clarence Thomas to the floor with “no recommendation. That vote was 13-1. The committee settled to “no recommendation” after it deadlocked 7-7 to give Thomas a “favorable” recommendation.

14) In 1987, the Judiciary Committee rejected a “favorable” recommendation for Supreme Court nominee Robert Bork 9-5. The committee then voted 9-5 to send Bork’s nomination to the floor with an “unfavorable” recommendation.

15) The full Senate then rejected Bork 58-42. Bork became only the 11th High Court nominee defeated on the floor.

16) Regardless, if things go smoothly in committee, we would expect Barrett’s nomination to be on the floor the week of October 25 with a vote toward the end of the week. But if the nomination hits a problem in committee, who knows?

17) If the nomination is on the floor, it’s likely Senate Majority Leader Mitch McConnell (R-KY) will immediately file cloture to bring an end to debate later that week.

18) Under the provisions of “Nuclear Option II” (which lowered the bar to end debate for Supreme Court nominations from 60 to 51), we would expect the Senate to confirm Barrett around the end of October.

19) Now let’s consider a scenario where the Barrett nomination is on the floor – but there is another problem with health and quarantines.

20) Senators CANNOT VOTE REMOTELY ON THE FLOOR FOR ANY REASON. They must be there in person to vote. Don’t forget that McConnell chided the House earlier this summer for implementing a remote voting plan.

21) Sen. Ron Johnson (R-WI) was one of the three senators diagnosed with COVID-19 recently. Johnson is in quarantine. Johnson told a Denver radio station that he would wear “a moon suit” to come to the floor to confirm Barrett if necessary.

22) There has long been an unwritten “rule” in the Senate about dress code. One wonders if a “moon suit,” donned for health purposes, during a pandemic, is really that different, than say, a mask? It’s possible a senator could object to a senator wearing a “moon suit” on the flr

23) Such a scenario would likely prompt a vote by the Senate as to whether or not such attire was appropriate in the Senate chamber.

24) But outside of the moon suit, it’s Republicans could lack the votes to confirm Barrett if senators are unhealthy or quarantined. We expect Sens. Lisa Murkowski (R-AK) and Susan Collins (R-ME) to vote no on Barrett. That means the maximum number of GOP yeas is 51.

25) Pence could break a tie. But the Vice President has never before broken a tie to confirm a Supreme Court Justice. If there are health issues, the Senate could lack the votes to confirm Barrett on the floor. Such a scenario could push her confirmation vote beyond the election