Step one on the all-but-certain path to Judge Amy Coney Barrett’s confirmation to the US Supreme Court — a hearing before the Senate Judiciary Committee — is officially complete.
Her nomination to fill the late Justice Ruth Bader Ginsburg’s seat now heads to a committee vote next Thursday, and a full Senate vote shortly after that. Barring any significant changes in the interim, she’s widely expected to get confirmed, though Democrats are weighing some procedural maneuvers to express their opposition.
Barrett’s testimony this week highlighted her past critiques of decisions holding up the Affordable Care Act and her reluctance to classify Roe as a super-precedent. But this isn’t expected to change many votes, if any. “This is probably not about persuading each other unless something dramatic happens,” Senate Judiciary Chair Lindsey Graham (R-SC) said at the start of the hearing. “All Republicans will vote yes and all the Democrats will vote no.”
Graham’s prediction, it seems, is likely to play out in the coming weeks.
Because of Republicans’ 53-47 Senate majority, Barrett’s nomination is poised to go through with little fanfare. Unless four Senate Republicans break with their party — since Vice President Mike Pence can be the deciding vote in the case of a 50-50 tie — the GOP has the votes it needs to keep on rushing through her confirmation.
What comes next
The Senate Judiciary Committee will vote on Barrett’s nomination on October 22, and the full Senate is expected to do so the week of October 26. Despite ongoing concerns about coronavirus exposure in the Capitol, Senate Majority Leader Mitch McConnell has said he plans to move “full steam ahead” on the confirmation process.
Thus far, no Republicans have signaled that they will vote against Barrett’s nomination, and GOP lawmakers who have recently contracted coronavirus have indicated that they will likely be able to vote.
Previously, there were questions about whether Republicans would have the numbers they needed to proceed if members with coronavirus were still quarantined when the floor vote was scheduled to take place. Given their presence at the hearing this week, Sens. Mike Lee (R-UT) and Thom Tillis (R-NC) seem like they’ll be able to make it to a vote despite positive tests. And Sen. Ron Johnson (R-WI), who also tested positive, is vowing to cast his vote as well.
Barrett’s vote could ultimately wind up breaking roughly along party lines. In the days after Ginsburg’s death, Sens. Susan Collins (R-ME) and Lisa Murkowski (R-AK) said that they opposed holding a vote before the election, and Collins has said she will vote against the nominee because of the timing. No other Republican senators have said that they would oppose the timing of the vote or the nomination itself, suggesting that even if the two of them defect from the conference, the GOP will still have a 51-person majority to confirm Barrett.
Democrats, meanwhile, have a limited set of procedural tools available to complicate the process.
Democrats have threatened to withhold a quorum on the committee vote and the floor vote
Senate Minority Leader Chuck Schumer has said that Democrats will try to use their limited options to oppose the next steps in Barrett’s confirmation. In both the upcoming committee vote and the floor vote, Democrats are able to withhold a “quorum,” or the required number of members needed for business to proceed, though they won’t be able to halt the nomination altogether.
“We will talk about when the actual vote occurs in committee and on the floor. Democrats will not supply the quorum. Period,” Schumer said last Sunday.
In the Judiciary Committee, for example, at least two members of the minority party must be present, along with the majority of the 22-person panel, for votes on nominees to take place. It’s possible that Democrats just won’t attend next Thursday’s vote and provide the two members needed for committee business. If Democrats don’t show up, however, Republicans could also disregard these rules and move ahead anyway. (Sen. Lindsey Graham (R-SC) has effectively done this in the past in trying to advance immigration legislation.)
Similarly, for a floor vote, at least 51 members of the Senate need to be there for a nomination to be considered, so a Democratic boycott would force Republicans to ensure that nearly all their members are present. While this could be inconvenient for some of the battleground senators who are out campaigning, the GOP’s 53-member majority means they won’t need Democrats to make the quorum and carry on with the vote.
There aren’t a ton of procedural options Democrats can use to block Barrett’s nomination because the vote threshold for Supreme Court nominees was reduced to a simple majority by Senate Republicans in 2017 — after Democrats did the same for lower court nominees in 2013.
To get the process rolling on a vote, McConnell needs to close debate on the nomination, a step known as invoking cloture. To do that, he’ll have to bring the Senate into an executive session, a move that requires a simple majority of votes — which Republicans are expected to have. At that point, he won’t need unanimous consent to move forward with a cloture vote or a confirmation vote, according to George Washington University political science professor Sarah Binder.
“Democrats could object to unanimous consent requests here and there, but ultimately McConnell and the GOP will get to the motion to get to executive session and the nomination,” Binder tells Vox. “I can’t see Democratic tactics successfully delaying a vote until after the elections.”
As such, Barrett is poised to be the next justice on the Supreme Court, and solidify a 6-3 conservative majority in the process. “We don’t have some special procedural way to stop this sham,” Sen. Amy Klobuchar (D-MN) has said.
Clarification: This article has been updated to reflect Sen. Susan Collins’s position on a vote on Barrett’s nomination.