Yesterday I wrote an article in which I did a pretty deep dive into the mechanics of the Senate fight that Mitch McConnell and Lindsey Graham are fighting to ram judge Amy Coney Barrett through the Senate and onto the Supreme Court in time to rule on the ACA. I promised I was going to keep an eagle eye on this, and to update as necessary.
Unfortunately, in the era of Trump, updates can become required more quickly than any of us would like. And so it is tonight. Some of this update is going to sadly become bogged down in Senate rules and procedures, but I will strain to make it all as simple as possible for those who aren’t as submersed in it as I am.
Just a quick, and hopefully painless recap. The current constitution of the US Senate is 53-47 in favor of the GOP. It takes a minimum of 51 votes to confirm a Supreme Court Justice, but in the case of a 50-50 tie, Vice President Mike Pence would be called upon to cast the deciding vote, presumably in favor of Barrett. That is where we started when Trump made his announcement of Amy Coney Barrett to replace Justice Ruth Bader Ginsberg.
Within 48 hours of Trump’s announcement, two GOP Senators, Maine’s Susan Collins, and Alaska’s Lisa Murkowski publicly proclaimed that they would oppose any vote on a new justice until after the election. This presumably cut McConnell’s edge from 53-47 to 51-49, and left him with only one more defector before he ran up against the wall.
But here’s where everything goes into the Senate legislative Cuisinart, and logic goes out the window. It was announced yesterday that three GOP Senators, Mike Lee of Utah, Thom Tillis of North Carolina, and Ron Johnson of Wisconsin had all tested positive for the coronavirus. All three have entered into the quarantine procedure, and are all now on the shelf for at least the next 14 days. If you start with a Senate confirmation vote of 51-49, the loss of those three Senators makes the final vote 47-48. Barrett fails her floor vote. But it’s not that simple, no matter how much we wish so.
Before a nominee can go to the floor of the Senate for a vote, they have to pass their Senate Judiciary committee hearing. I believe Barrett’s is scheduled to start on the 12th of October. The Senate Judiciary committee is currently constituted at 12-10 But both Lee and Tillis are members of the Senate Judiciary committee. And while Senate rules, especially in the era of the coronavirus allow for remote participation in committee hearings, Senate rules require all votes be cast in person. If Lee and Tillis are unable to return to Washington from quarantine to cast a committee vote on Barrett, a purely partisan vote would end up 20-20. And that’s not good enough, the rules require that a nominee obtain a majority of the vote, and the Vice President can’t cast a tie breaking vote in committee. Barrett’s nomination would fail in committee.
But here’s where it gets insane. Senate Majority Leader McConnell is empowered to ignore the the results of the Senate Judiciary committee vote, and bring the nominee to the floor for a vote anyway. And here’s where we have two wild cards that can come into play that can turn the vote on its ear.
Remember, both GOP Senators Murkowski and Collins have already said that they refuse to vote in favor of a nominee to fill Ginsberg’s spot before the election. One would take that to mean that they would vote “no” on a nominee brought before the Senate before the election. But the two of them have a third option available to them, which McConnell may be looking to as a lifeline. No votes from Collins and Murkowski would make the final tally 48-49 if the three indisposed GOP Senators are unable to vote. But Murkowski and Collins can also choose to vote “present.” If that becomes the case, then the final vote would be 58-57 and Barrett would be confirmed. And McConnell is likely looking at this as his lifeline. But it’s no sure thing.
Senator Susan Collins is trailing badly in her reelection fight. And the albatross around her neck is her vote to confirm Brewski Brett Kavanaugh to the court. Her voters have never forgiven her. I find it inconceivable that she would try to take the chickenshit way out by voting “present.” And Lisa Murkowski just saw something in her rear view mirror that might well give her pause to think.
Ladies and gentlemen, meet Dan Sullivan. He is the junior GOP Senator from Alaska, and he is in the hurt locker. Current polling shows him within the margin of error, only 1.5 ahead of his liberal independent challenger. Donald Trump is not a popular GOP President in Alaska. They see him as willing to rape the pristine beauty of their state in favor of oil and coal interests. And Sullivan is running scared.
A couple of days ago, Senate Minority Leader Chuck Schumer pulled a neat parliamentary trick to force a floor vote on a bill. The bill was incredibly simple, Should the US Senate vote to repeal the Affordable Care Act. This was a nightmare vote for McConnell, because it forced his caucus to put their names on the record in an up and down vote. The vote failed miserably, with a half a dozen vulnerable GOP Senators voting nay.
Including freshman Alaska Senator Dan Sullivan. The ACA is popular in Alaska, and Sullivan dared not vote against it, especially when he had covering support from his own party. But it is also a bell weather to Lisa Murkowski’s to how hostile the home environment is to Trump right now.
Which places Dan Sullivan in a potentially untenable position. If Alaska sentiment is against letting Trump ram a third Supreme Court Justice through in the weeks before the election, Does Sullivan suddenly become a potential swing vote on whether or not judge Barrett gets through the floor vote in the Senate?
In all of my years in closely following politics, I have never seen a situation of such import with so many moving parts and variables. And as the fallout from Trump’s infection, and the increasing likelihood that his nomination ceremony in the Rose Garden was a super spreader, with so many GOP Senators present, there is no way to know where this is really going next. Don’t touch that dial.
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Here’s a question. I get what you’re saying about Judiciary Committee rules being that while members can participate remotely nowdays, to vote a nomination out of Committee (or not) a member must be physically present to do so. Them’s the rules as they say. However, this is the GOP, under McConnell’s “leadership” we are talking about and he is so hell bent on ramming this through come hell or high water what if he orders Graham to CHANGE THE RULES? Basically just have the GOP members taking part remotely vote on a rule change allowing them to pass a yes or no vote on approving Barret’s nomination out of committee? I have no problem imagining exactly that scenario. Then we are left with the fraying thread that Collins and Murkowski will hold the line, and maybe another couple of GOP types in tough re-election fights will do so. I know in my own state now that Cal Cunningham has shot himself in the dick like John Edwards did Tillis’ best hope is continuing to keep one lip sewn to Trump’s ass and the other to McConnell’s – and in routing some badly needed money now that the lead Cunningham was starting to build will be gone next week. The question would be are there enough Parliamentary rules Schumer could use to throw sand in the gears of such a brazen move on the GOP’s part. I guess I’m not as confident as you about the GOP’s schedule being disrupted. Which doesn’t mean I hope you’re right!
I think changing the committee rules would require that the committee pass them.
My point is that perhaps Graham either on his own or at McConnell’s orders simply puts forth a motion to change his committee’s rules to allow members to vote remotely to approve Barrett’s nomination out of committee. I’m sure you’ve seen hearings and there are often votes taken over disputes that come up during the proceedings which I assume would happen (again) in one over this nomination. Because the Party in power gets to stack the size of committees to ensure they will have a majority on any vote (usually with an extra seat and sometimes more in case one of their members is absent) that means any procedural vote on changing the rules will pass unless someone in the GOP shows some respect for the institution of the Senate and has some semblance of honor and courage to defy Trump left in them. How likely do you think that is? Same thing applies if McConnell has to change the rules of the Senate first to allow a committee chair to put forth a motion to change the rules and allow members on Judiciary to vote remotely to approve Barrett. He’s got the votes unless even more GOP Senators stand up to him. Not to mention we’ve got Manchin who would vote with McConnell on this because he’s clearly intending to run for re-election down the road instead of retiring. McConnell is so far past the point of return he couldn’t see that point if he had the Hubble and Webb telescopes combined. He wouldn’t even bother to try because he doesn’t care! So again I’ll say I am rather less confident than Murfster that we’ve actually got a chance here. It’s possible enough GOP Senators might feel enough pressure to, especially with it seemingly increasingly likely that Trump is going down and going down HARD in November to start looking ahead and try to limit the amount of wreckage they will have to repair to be a viable Party again. Possible, but I take little comfort in the fact it’s theoretically possible. Talk behind the scenes to reporters on the “swear on mom and apple pie I won’t name you” promise of anonymity about being fed up with Trump don’t inspire much faith that when they have to publicly break with Trump (and McConnell) they will have the guts to do so.
One thing is probably staying their hand, at least at the moment: ANYTHING they do will be used by the Dems when they take over the chamber next. And that time is only three months in their judgment. Also, they want to limit their losses even now. As Jennifer Rubin pointed out, if they pull that switch before the election, purple state GOP Senators can kiss their seats goodbye. Do it during the lame duck and the Dems have got the green light to reshape SCOTUS as they see fit: more justices, term limits, etc.
So they’re having to weigh their big goal against how much pain it’ll cost. And wouldn’t it be ironic if Barrett gets reinfected and succumbs during a go-around, making it all for naught?
Agree with you. No confidence in McConnell following any established rules of civil procedure or laws. No matter what the Ds do to stop/block, Senatortoise McTraitor will change the Senate rules of procedure to force this through. But Ds still need to do as much as possible to block, not only because of the dire consequences to all of us, but because the more the R Senators & MoscowMitch have to perform acrobatic maneuvers to twist and violate Senate rules, the better likelihood the Ds will have a case against this vote being illegal because it’s contrary to the intent of our Constitution. Then in 2021, the D Senate after hopefully winning a majority in the Senate & House, and winning the Presidency – will have to hold hearings to have Barrett removed and replaced. Then any and all Supreme Court decisions she has ruled on would have to be revisited and reheard without her stricken decision/vote.
Are those three senators actually lost? Wouldn’t they simply participate in the hearings by Zoom (or something)?
Hearings, yes. Vote, no.
Sure, I got that part. But this is McConnell we’re talking about.
I could see him pulling a Merrick Garland reversal in order to get his way. Like his boss, trumputin, no rules apply to him. He makes the rules now.
Do you really mean to say, “Follow meon”? Is “meon” a new word?
It’s how you would say it in ‘cat’. Meon!