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Pandemic sharpens Senate struggle over Trump's high-court nominee

While Donald Trump is intent on getting his recent Supreme Court nominee confirmed before the November 3 presidential election, the eruption of COVID-19 into the Senate and the innermost circles of the White House has complicated the calendar.

A week ago, in the midst of his re-election campaign, the president summoned 150 invitees to a pomp-filled ceremony on the White House lawn – with few masks in evidence – to announce his nomination of Amy Coney Barrett to fill the now-vacant ninth seat on the US Supreme Court. 

Trump is counting on his choice of the conservative judge, who opposes abortion rights, to galvanize voters on the religious right. If confirmed as expected, Barrett will replace feminist and progressive icon Ruth Bader Ginsburg, who died September 18. 

But at least 7 participants in the White House ceremony have since tested positive for the coronavirus, beginning with the president – hospitalized since Friday – and his wife Melania.

Barrett, who may have gained immunity from an earlier bout of COVID-19, has since tested negative.

But two Republican senators invited to the White House event, Mike Lee and Thom Tillis, have tested positive. A third Republican senator, Ron Johnson, who did not attend, announced Saturday that he too had tested positive.

All 3 are now self-quarantining.

But their illness complicates matters: the US Constitution charges the upper house of Congress with vetting and confirming a president's judicial appointees.

Republicans control 53 of the 100 seats in the Senate, but two of them – Susan Collins and Lisa Murkowski – have said they oppose any vote before the election. 

If the 3 ill senators were unable to return soon, their absence could deprive the party of its majority. Meantime, Democrats are insisting on an in-person vote and demanding that the process be delayed. 

'Too dangerous'

Still, Republicans continue to express optimism.

"This month, we will add Judge Amy Coney Barrett to the Supreme Court of the United States," Senator Lindsey Graham, who chairs the Judiciary Committee, tweeted on Saturday.

"We're going to do this," Republican senator Rick Scott told Fox News on Sunday. "There's no reason this wonderful person cannot be confirmed as a Supreme Court justice by the end of October."

Citing the illness of the 3 Republican senators, Senate majority leader Mitch McConnell said Saturday he was postponing floor action in the Senate for two weeks.

But he added that the Judiciary Committee would proceed with confirmation hearings for Barrett, slated to begin October 12.

Democrats are pushing back.

"If it’s too dangerous to have the Senate in session, it is too dangerous for the committee hearings on the Supreme Court to continue," Senate Democratic leader Chuck Schumer said on Twitter.

Democrats insist that any vote be postponed until after the election, while Republicans say the committee hearings can safely be held virtually. 

"Senators Lee and Tillis can participate by videoconference just like we've been doing" since March, Scott said.

Voting from the balcony

But the rules of the Judiciary Committee (composed of 12 Republicans and 10 Democrats) require that a majority of members be physically present for a vote on forwarding a judicial nomination to the full Senate. 

If Democrats boycott the hearings, Republicans will lack a quorum unless Lee and Tillis somehow take part. Everything will depend on how fast they recover – and whether any other senators fall ill. 

If they had to remain quarantined, McConnell, a master of procedural arcana, could name other senators to take their seats. He could even bring a vote on Barrett directly to the Senate floor, bypassing committee hearings, though such a norm-breaking move on so pivotal a nominee could be politically costly so close to an election.

As to a final floor vote, 51 senators have to be present to proceed, meaning that without the 3 ill members, Republicans would be unable to move forward.

So a political struggle has erupted over the conditions of their return, with Democrats threatening a boycott out of safety concerns.

Scott said the vote can be held safely.

"You don't have to walk clear up to the front of the chamber – you can vote at the back of the chamber," he said, suggesting that his COVID-stricken colleagues could even vote from the Senate balcony. – Rappler.com