A Lame Duck Supreme Court Confirmation

Even if Democrats win on November 3rd, Republicans can confirm Amy Coney Barrett before the new Congress takes their oath.

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Senate Majority Leader Mitch McConnell / Photo by Gage Skidmore

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My first post couldn’t fit more seamlessly with the name of this newsletter The Lame Duck Report than a story about how dangerous the lame duck session could be this year in the Senate. How so? Well, the Supreme Court confirmation.

The lame duck session occurs every two years and takes place between Election Day and the swearing in of the new Congress—approximately 2 months of legislative time in which many members of Congress have either retired or lost their re-election bids. This means, quite frankly, things get chaotic. Some members have nothing to lose—because they already lost.

This year, if the GOP is unable to confirm Amy Coney Barrett to the Supreme Court before the election, they might try it during this session.

The Supreme Court Vacancy

While the election might go exactly as planned for the Democrats, the fate of the Supreme Court vacancy will likely not go as planned.

It is true that the Democrats could leverage some of their minority powers to obstruct the proceedings and buy the nation time before the full Senate vote. Additionally, three members of the Senate GOP have contracted coronavirus — and two of them are members of the Senate Judiciary Committee responsible for pushing Barrett’s nomination to the full floor. So, there is a possibility the confirmation vote will not happen before Election Day.

Despite these factors of Democratic obstruction and rising coronavirus cases among the ranks of the Senate GOP, the Senate Judiciary Committee is still scheduled to begin hearings on October 12th. The Judiciary Committee is set to vote the nominee to the floor for consideration on October 22nd. Further, they have stated there will be no change to this date. Although the committee can vote for the nomination to move forward on time, with Senators Thom Tillis of North Carolina and Mike Lee of Utah voting remotely due to their positive COVID-19 results, the full Senate does not allow for remote voting.

This means that for the Senate to confirm Judge Barrett to the Supreme Court, the GOP must have at least 50 Senators voting in favor — and in person.

As more GOP members are tested and some are shown to be infected with the coronavirus, this could prove difficult to reach the votes sufficient for passage. Additionally, Judge Barrett cannot contract the virus or she will be unable to attend the hearings in person. A virtual Supreme Court confirmation hearing looks rushed and unnecessary, so that is not something the Republicans will want to have to do.

For the Republicans, there is little room for error when it comes to fast-tracking this confirmation. However, error seems to be the only thing that has remained consistent for them this month.

Lame Duck Session

Taking all of the hurdles Republicans have into account when it comes to voting on the nominee before Election Day, I have bad news for progressives wishing to see the (potentially) new Democratic Senate and White House fill Ruth Bader Ginsburg’s seat: Lame duck session.

The Senate GOP, and Republicans-in-government more generally, are aware that their chances of retaining control of the government after the election are low. As a result, they would absolutely prefer to fill the vacancy before the nation knows who won on Election Day. The key word is “prefer”, since they will assuredly act on filling the seat post-election if they must.

Other elections will come, but this seat will not.

If certain procedural hurdles and COVID-19 infections prove to be too difficult to overcome and vote on Judge Barrett before Election Day, they still have time to fill the seat. During lame duck session, members who lost their elections will still be sitting members until the new Congress comes in January. There is nothing saying that the lame duck session cannot consider a Supreme Court nominee.

See the problem? Sure, the GOP would like to see Judge Barrett confirmed before Election Day — but she doesn’t have to be. A Democratic sweep may even push the Republicans to confirm her quicker since they know their time is officially running out for good. My diagnosis is that the Republicans would much rather lose the White House and Senate in 2020 than miss the opportunity to solidify control of the Supreme Court with a conservative 48 year-old nominee. Other elections will come, but this seat will not.

Also, Leader McConnell has come out and said it explicitly to Fox News.

He states, “This Republican Senate was elected for a term that ends in January of next year. The president was elected for a four year term that ends January 20th of next year. There are no reduced constitutional prerogatives during either of our tenures.”

Conclusion

The public backlash will be severe if the nation votes out President Trump and many of the GOP Senators who will rush to cast their vote in favor of Judge Barrett in the lame duck session, but I do not believe it will matter much. It may further tarnish the already tainted reputation of the Republican Party, but the reward will be maintaining a lifetime of control in the nation’s highest court. A court that has the ability to stop many of the initiatives passed by a Democratic trifecta government, as well.

This may seem pessimistic because it is. It is important to be candid that reaching Election Day is only part of the battle for progressives to see that this seat remain unfilled. Massive public pressure will be the only remedy if the full Senate vote is delayed beyond Election Day.

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