An outbreak of COVID cases among Republican Senators -- Lee (UT), Johnson (WI), Tillis (NC) -- may complicate, but need not derail, the Supreme Court confirmation process for Judge Amy Coney Barrett. Over the weekend, majority leader Mitch McConnell announced that the Senate will postpone floor activity for two weeks -- adding that critical committee work "can and will" continue to take place in the interim. His focus, for obvious reasons, is the schedule of the judiciary committee:
"On Monday, I intend to obtain a consent agreement for the Senate to meet in pro forma sessions for the next two weeks. Previously-scheduled floor activity will be rescheduled until after October 19th. The important work of the Senate’s committees can and will continue as each committee sees fit. The Senate Judiciary Committee will convene on October 12th as Chairman Graham has scheduled to begin confirmation hearings for Judge Amy Coney Barrett’s nomination to the Supreme Court. The Senate’s floor schedule will not interrupt the thorough, fair, and historically supported confirmation process previously laid out by Chairman Graham. Since May, the Judiciary Committee has operated flawlessly through a hybrid method that has seen some Senators appear physically at its hearings while other members have participated virtually. The Committee has utilized this format successfully for many months while protecting the health and safety of all involved. Certainly all Republican members of the committee will participate in these important hearings.
That bolded portion is a direct response to last week's statement from Chuck Schumer and Dianne Feinstein demanding that the confirmation process be delayed, insisting that virtual hearings would not be acceptable:
The unfortunate news about the infection of our colleague Senator Mike Lee makes even more clear that health and safety must guide the schedule for all Senate activities, including hearings. In addition, there is bipartisan agreement that a virtual confirmation hearing for a lifetime appointment to the federal bench is not an acceptable substitute. All circuit court nominees have appeared in person during the pandemic, and there is far more at stake for the American people with this Supreme Court nomination...It’s critical that Chairman Graham put the health of senators, the nominee and staff first – and ensure a full and fair hearing that is not rushed, not truncated, and not virtual. Otherwise this already illegitimate process will become a dangerous one.
This is grade-A nonsense, obviously and cynically designed to try to run out the clock. A few points: (1) There is nothing "illegitimate" about the process, despite Democrats' repetition of that mantra. Republicans are operating fully within the bounds of the constitution (Joe Biden has stated otherwise, which is dishonest fear-mongering), and adhering to historical precedent. (2) There is no "bipartisan agreement" that virtual confirmation hearings are not acceptable. This is made up. (3) There is zero legitimate reason why a hybrid in-person/virtual committee hearing cannot be used to conduct a fair and thorough hearing. Democrats may be upset that they won't be able to stage as many theatrics as they might prefer, but that's not a valid objection. More than anything, inventing this standard is about one thing, and one thing only: Delay. Republicans should not, and apparently are not, falling for it. (4) Despite Schumer and Feinstein's insinuation, the committee has engaged in partially-virtual hearings for multiple circuit court nominees, whose influential positions are also lifetime appointments. There is ample visual proof:
Senators Whitehouse, Blackburn, Booker, and Hirono appeared remotely at Judge Cory Wilson's confirmation hearing for the 5th Circuit. Wilson testified in person. pic.twitter.com/vBPDSMgOuy
— John Doe (@fedjudges) October 2, 2020
Review the whole thread for additional examples. McConnell's office has also noted that "the Senate Judiciary Committee has held more than 20 hearings during the pandemic and every single one has been a hybrid hearing involving some participation via video. On some occasions, some Democratic Senators have praised this hybrid format as a smart, flexible, and safe way for committees to continue important work during this unprecedented time." The hearing should proceed, as scheduled. Every member will have a full opportunity to question the nominee, either in-person or by video. When the time comes for votes, every accommodation should be made for safety -- including extra-cautious distancing measures. The bigger threat to confirming Barrett on the established pre-election timeline is having a sufficient number of healthy Senators present for a floor vote quorum. Read this useful primer for the relevant facts on that front.
If I were McConnell, I'd be doing everything within my power to ensure the health and safety of Senators. If this means slowing all other business to a trickle, so be it. Focus. Pass a COVID relief package and fill the seat. And just in case the stakes aren't clear enough, I'll leave you with this stark reminder of why it's so important that Republicans retain control of the upper chamber next year, especially under a potential Biden presidency:
“If the Democrats gain control of the Senate, you’re looking at the chairman of the Subcommittee on Health.” —Bernie Sanders speaking today on behalf of Joe Biden
— Walker Bragman (@WalkerBragman) October 3, 2020
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