Supreme Court

Will the Senate Have a Quorum to Confirm Judge Barrett? (Updated)

As more senators test positive for COVID-19, the ability of the Senate to conduct business is threatened.

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Article I, Section 5 of the Constitution provides:

Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Business; but a smaller Number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide.

This means that the Senate needs 51 Senators to conduct business on the floor. This might present a problem for Senate Republican plans to confirm Judge Amy Coney Barrett to the Supreme Court.

There are 53 Republican Senators. As of this morning, three Republican Senators (Tillis, Lee, and Johnson) have tested positive. This means there are only 50 Republican Senators who can attend Senate proceedings. (The Vice President does not count for these purposes.) So if Senate Democrats boycott proceedings, they might be able to grind Senate business to a halt.

I  said "might" for a reason. Here are a few additional points to keep in mind.

First, the quorum requirement applies to proceedings in the committee of the whole. It does not apply to individual committees (such as the Senate Judiciary Committee) which may conduct business so long as they have a quorum of committee members present. So the Senate Judiciary Committee may still be able to conduct business and hold confirmation hearings. The Committee has allowed members to participate remotely since the late spring.

Second, someone usually needs to be present to note the absence of a quorum, so this could mean a Senate Democrat would have to come to the floor to note the lack of a quorum, so fifty Republicans might be enough, because the arrival of a single Democrat for a quorum call would establish the necessary quorum.

Third, as you may have noticed, Article I, section 5 authorizes the Senate to compel attendance. This is done by instructing the sergeant-of-arms to go find absent members and bring them to the floor. This does not happen too often, but it has occurred. Some readers may remember this from 1988 (when the shoe was on the other foot):

Angry Republicans accused Democrats of turning the Senate into a "banana republic" yesterday after Capitol Police forced their way into the office of Sen. Bob Packwood (R-Ore.), arrested him and carried him feet-first into the Senate chamber in a flamboyant climax to a bitter all-night filibuster fight.

Democrats, claiming they were the aggrieved party, countered that Republicans had provoked the "sideshow" in order to deflect attention from GOP efforts to scuttle Democratic-sponsored legislation to curtail costs of senatorial campaigns.

In the midst of the crossfire, a buoyant Packwood held a news conference at which he waved his arrest warrant at cameras, gave a detailed account of his midnight capture and joked with Senate Sergeant-at-Arms Henry K. Giugni, who led the posse-style manhunt that flushed him out of his locked-and-barricaded office.

Fourth, remote attendance may be possible. House Democrats approved remote voting in May. Interestingly enough, Republicans opposed this step, and some even sued over it. As far as I am aware, the Senate has not approved any form of remote attendance or remote voting (and now that the shoe is on the other foot, why wouldn't Senate Democrats oppose it?). That sort of rules change would require Senate approval.

[Update: There is a proposed Senate Resolution co-sponsored by Senator Rob Portman and Richard Durbin to allow remote voting. As Josh Chafetz notes, changes to the standing rules of the Senate requires a 2/3 vote, so instituting remote voting would require Democratic cooperation or using the procedural trick Senator Reid used to get rid of the filibuster for judicial nominations.]

A final note: It appears that two of the three Senators may have contracted Covid-19 due to their attendance at the White House event announcing the nomination of Judge Barrett to the Supreme Court. Although quick tests were used for those who attended the inside reception, those who attended outside were not tested, and once tests were conducted White House officials reportedly told attendees they could remove their masks (as if false negatives are not a thing). In other words, if the Senate is unable to confirm Judge Barrett to the Supreme Court due to a lack of a Senate quorum, White House arrogance and incompetence will bear much of the blame.

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  1. “Someone usually needs to be present to note the absence of a quorum.”

    ?

    Are you saying that if 49 Republican Senators show up they can conduct business so long as no one says the “Q” word?
    word?

    1. Basically yes. IIRC, there is direct on point precedent from SCOTUS that the quorum requirement is non-justiceable. That is, someone affected by a new law can’t challenge it’s validity on the basis of it being passed without a quorum.

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    2. Each morning, the majority leader, one senator acting as president and one minority senator conducts quite a lot of business. The minority senator just is there to make sure no hanky panky is done by the leader and object if necessary.

    3. The “Palm Sunday Compromise” where the Senate passed a bill to give federal courts jurisdiction over the Terri Schiavo case in 2005 was approved by 3 senators.

    4. Since the speaker of the house is an officer (“The House of Representatives shall choose their Speaker and other Officers”) what is the rationale for restricting “officer” to exclude legislative officers for succession? It doesn’t restrict it to officers of the United States, for example.

      1. All that shows is that the Speaker is an officer of the House. Whether that also makes the Speaker an Officer of the United States is anybody’s guess.

    5. Yes. Call it Schrodinger’s Quorum.

    6. It is, damnably, the current practice. The Senate has conducted consequential business with as few as 3 Senators present. Just one of the many ways the Constitution is routinely violated.

      Were you not aware of this? Why else did you suppose the House and Senate operate on voice votes and unanimous consent most of the time? Anybody who has watched CSPAN knows that Congress violates the quorum clause.

    7. Roberts rules presumes a quorum absent a call.

      1. Which is irrelevant. Neither the house, the senate, nor most any legislative body use Robert’s Rules. Robert’s Rules was written for small social groups not big enough to make their own rules.

        1. It’s not irrelevant; it shows that this is a common, not inherently nefarious practice.

  2. I wonder if Senators under quarantine can wear hazmat suits or borrow space suits from NASA.

    1. If that is what it takes.

    2. Or the isolation stretchers they used to transport Ebola victims.

      1. It wouldn’t be the first time Senators were brought in on stretchers.

  3. “ Second, someone usually needs to be present to note the absence of a quorum, so this could mean a Senate Democrat would have to come to the floor to note the lack of a quorum, so fifty Republicans might be enough, because the arrival of a single Democrat for a quorum call would establish the necessary quorum.”

    Might Senator Murkowski or Senator Collins note the lack of a quorum under these circumstances?

  4. “Will the Senate Have a Quorum to Confirm Judge Barrett?”

    Well, will they or won’t they? I don’t see an answer in the post.

    1. OK, would you hop in your time machine and check, then come back and report to the rest of us? For some reason, Adler seems to think his is broken.

  5. Lol. You think a positive covid test would prevent them from going to the Senate floor to make a 6-3 SCOTUS? Hell no.

    1. Yes, stopping progressive perversion of SCOTUS is a top priority. Democrat evil must be stopped.

  6. So is Judge Barrett embarrassed by any of this? I’m assuming her capacity for shame is rather limited given that she accepted the nomination under these circumstances in the first place. But this is such an over-the-top Charlie Foxtrot, that I would hope she feels a little guilt or shame about how all this went down.

    1. So is Judge Barrett embarrassed by any of this?

      Did she wear a mask at that silly party? Did her husband? Her children? Her guests (her fellow goobers from the Notre Dame faculty, apparently, did not)?

      I believe it safe to assume she’s all-in on disdain for science; reliance on miracles; belligerent backwardness, superstition; and general disaffected rejection of reason and modernity unless evidence demonstrates otherwise.

      1. Conformity is an obsession with you. So you hate the fact that a educated intelligent woman got a BS and JD and sits on a US court of appeals and may become a Supreme Court justice?

        1. All those credentials, yet the photograph from the Rose Garden demonstrates she’s still a lousy parent who rejects science to flatter superstition. Her childish recklessness exposed her children to a deadly virus.

          She probably didn’t know what to do, having left the nanny (or nannies) behind for photo op purposes.

          1. Speaking of science, can you share with us how, exactly, a man can get pregnant and have a child, like the Left currently believes?

          2. “All those credentials, yet the photograph from the Rose Garden demonstrates she’s still a lousy parent who rejects science to flatter superstition…”

            Yeah, nothing scientific behind those tests…

            1. Actually, there isn’t. The quick tests were *never* intended to be used this way. They are not that reliable. Look it up.

      2. “I believe it safe to assume she’s all-in on disdain for science; reliance on miracles; belligerent backwardness, superstition;”

        You don’t think we can assume that she relied on the fact that the people attending the ceremony tested negative? It sounds like your assumptions are based on a rock-solid, evidence free faith that people you disagree with are superstitious goobers, Arthur.

        And in any event, she appears to have had the virus already.

        1. Unfortunately she apparently did, not knowing that those quick tests were not meant to be used in this fashion.

          https://slate.com/news-and-politics/2020/10/white-house-misused-rapid-covid-19-tests-face-masks.html

          1. So… no superstition or anti-science?

      3. ‘I believe it safe to assume she’s all-in on disdain for science; reliance on miracles; belligerent backwardness, superstition; and general disaffected rejection of reason and modernity unless evidence demonstrates otherwise.’ Not her, but you’ve definitely described yourself to a tee, chief-among-goobers.

      4. Did she wear a mask at that silly party?

        She is among the 7 million Americans that do not need to, because she has already had, and recovered from, coronavirus.

        1. At least theoretically, the mask doesn’t protect her from the virus, but rather protects others from getting the virus from her.

          1. Yes, but she was infected months ago; she should presumably no longer be contagious.

      5. Regardless, Judge Barrett will soon be Justice Barrett. And it will happen before the election.

        Also, district court judges #162 – 169 will be confirmed in that same time frame. There are seven more on deck, with another 24 whose hearings will be held after the election, and confirmation votes will be held in December.

        There is no going back Arthur. These judges will be around for decades. No amount of attempted dilution is going to change that. Some things are forever….or maybe just seem that way. 🙂

    2. “…she accepted the nomination under these circumstances in the first place.”

      What circumstances? Surely Trump has the constitutional power to nominate a justice to fill a vacancy any time during his term, just as Obama had. What the Senate did in 2016 was ridiculous and cowardly, but that’s hardly Judge Barrett’s fault. We can’t condemn the actions of 2016 and call for the same actions now. We can call the Senate Republicans unprincipled hypocrites.

      1. The circumstances are she is knowingly enabling people who lied about Americans deserving a voice to get what they want. She’s complicit in the lie. By accepting the nomination because of the actions of liars, she is telling everyone that lying works if it gets you what you want. That’s not a moral thing to do and speaks terribly of her character.

  7. instituting remote voting would require Democratic cooperation

    After the level of sustained wailing from the Ds over the life-or-death need for remote voting for the election, digging in their heels here and demanding in-person voting in the Senate might create some tricky optics.

    1. But as Mitch McConnell et al showed with the nomination there is no such thing as bad optics due to rank hypocrisy, bad faith positions, and outright lying. So why should they be the ethical ones in this situation?

      1. But as Mitch McConnell et al showed with the nomination there is no such thing as bad optics

        Oh, I see. I didn’t think you thought that situation looked all that good, but I probably misread a few dozen of your posts.

        So why should they be the ethical ones in this situation?

        I just made the (I thought uncontroversial) point that it wouldn’t look particularly good to the rest of the country who is forced to conduct large swaths of their life activities in a virtual forum. I didn’t suggest they wouldn’t try. You pays your money and you takes your chances.

        1. Why would you think it would be an uncontroversial point to try and call out Democratic hypocrisy on this matter when we are only in this situation due to glaring Republican hypocrisy, bad faith dealing, and lying about their beliefs about American voters deserving a voice?

          And really the controversy isn’t so much the point I suppose as the people who would have to be the ones to make it: lying bad faith Republican Senators would have to try and call Democrats out for hypocrisy. People who lack consistency and morals are in no position to attempt to shame or lecture others into having them.

          1. It’s not even hypocrisy yet.

            But I’d be surprised if the optics become an issue. The Republicans trying to ask the Dems to slit their own judicial throats for the principle of the thing will be laughed off the stage.

            1. It’s even more ridiculous than that: “Hey Democrats! Remember when we said no to your proposed rule changes to keep us safe during a pandemic? Well, some of us got sick during this pandemic. And we are trying to do this thing where we shamelessly go back on our word about valuing American voters. So if you could do us this teeny favor of going with your original plan so that we can get what we want from lying we would really appreciate that. Oh and if you don’t we’ll shamelessly bully you from our inferior moral position into getting what we want.”

          2. Why would you think it would be an uncontroversial point to try and call out Democratic hypocrisy on this matter

            Mainly because I was making a simple comment about how I thought this particular situation would come across to the populace at large. I’ll leave the “well, THEY started it 17 moves ago” beer-swilling team fandom in your more than capable hands.

            1. Dude, can you literally not comprehend how it’s wrong to lie? Like do you not see what was wrong about saying American voters deserve a voice but actually lying about that position? Is your entire party George Constanta?

              1. Children think politicians always tell the 100% truth and never put a spin on stuff. Its so common for pols to lie that we even have the word “spin” to describe when they lie.

                Are you a child?

                1. No I’m an adult with moral integrity and you’re a cynical adult who thinks everyone else is as immoral as you are.

                  1. Basic observation, if you have to tell people you are mature and ethical, you are neither. In this case, you are partisan, I can’t make any statement about the rest.

                    1. “I can’t make any statement about the rest.”

                      And yet you chose to anyway by implying I am immature and unethical based on no evidence other than a shallow understanding of human nature.

      2. It’s more a matter of there being no such thing as good optics. And when there are no good optics, there are no bad optics.

        Complain about everything, people stop caring if you complain. Call everybody racist, people stop caring if you call them a racist. You’ve got to sometimes NOT do something, for people to care if you do it.

        1. If people call you a racist a lot you should probably consider why that is and maybe work on becoming a better person rather than not caring.

          1. You’re a racist.

            1. If you give me an example I can maybe work off of that. But in general I do tend to self-reflect on what racial biases I have, whether I engage in any racist behaviors, what ways I am contributing to propping up racist systems, and what steps I can take to reduce these in the future.

          2. If people call you a racist, they may have an axe to grind. They may be dishonest political advocates or activists. As racist is one of the smears du jour, there are many reasons other than your assumption that one is guilty by reason of accusation, ‘lawtalkingguy.’

    2. Even more so after their absurd proxy voting rule they passed in the House.

  8. Why can’t senators who tested positive attend in-person proceedings? Is there any rule requiring that?

    1. The short answer is they can attend. A Senator has the right to attend all meetings and deliberations. Of course, that Senator can be removed with proper procedure (expelling a member) or can probably be found “out of order” by the presiding officer which then can result in the expulsion of that member.

      But unless the Senate has adopted a rule concerning positive Covid individuals that bars them from the Senate Chambers it would not be legal to bar them from entering without following at least some procedure to properly remove that person.

    2. I doubt there is a specific rule, but it would be a terrible idea. It’s probably a bad idea on public health grounds, and it certainly has awful optics that would make it a convenient cudgel during a Senator’s next campaign.

      1. Right. But if they have to show up in person because the Ds get cute and won’t agree to virtual attendance, it’s not immediately clear to me who the cudgel would fall harder on.

        1. It’s clean to me. Those senators tested positive because of their own stupidity, vanity, recklessness, groveling to an idiot President, and elementary lack of concern for others.

          1. Johnson was not at the Barrett announcement.

            So, expert on infections, how did he get it?

            1. The GOP has a policy of not taking COVID precautions seriously. Doesn’t take an expert to see that causation.

              1. I’m sure you have a copy of that official policy right? Please share if you do.

                1. Strong point – unless they wrote it down and ratified it, it doesn’t count.

                  Are you just trying to look foolish?

                  1. Where does this policy exist and how was it disseminated to everyone in the party?

                    1. Parties have things called platforms, which the GOP didn’t do in 2020 other than to issue a statement saying they support whatever Trump wants.

                    2. You’re not this dumb; stop trolling.

                    3. “You’re not this dumb; stop trolling.”

                      Right back atcha.

                    4. Where does this policy exist and how was it disseminated to everyone in the party?

                      By tweet.

                  2. Well you said they had a policy so asking for a copy of it doesn’t seem to out of bounds. Or are you just making shit up and using hyperbole because you are making stuff up?

                    1. Policies must be written down? No; you know this, everyone knows this about the GOP, so stop trolling.

                    2. Everyone knows that you make shit up. You state “oh look they have a policy” when of course they don’t have a policy about it. Some people have preferences, but it isn’t some sort of official policy let along party policy. You are just make generalized statements and conflating them to something they are not like have some specialized insight when all you are doing is blowing hot air.

                    3. No, Ed makes things up. I’m a straight shooter you disagree with and some on here are not very good at handling disagreement and so try like high-school debate club nonsense.

                      Take up whether the GOP has a policy about their personal COVID precautions in the open thread on Thursday and see what people think.

                2. Well they didn’t do a 2020
                  platform other than endorsing whatever Trump wants, and Trump has historically been very skeptical of most COVID precautions so in a sense it is their official policy.

            2. Must have been either the grovelling to an ‘idiot President,’ or the elementary lack of concern for others, these are the ‘clear’ catch-alls for the outraged and not concerned with facts.

    3. People who like to point fingers will frown on it. But they’ll all be wearing masks, so you won’t be able to see them frowning. That’s a plus at least.

    4. The CDC says they can. I’ve seen the video of the head of the CDC saying masks are better than a vaccine. Face coverings are perfect at preventing infected person from infecting others.

  9. Masks are effective at reducing the risk of transmission, but they aren’t this magical device that the media is portraying them which negates any risk. I’m sure masks at the Rose Garden event probably would have reduced transmission, but most likely would not have eliminated it.

    The hole in testing is about 3 days from the exposure event (plus the added ‘false negatives’ of around 5%) so even on-demand testing is not fool proof.

    The best we can do until this is all over is 1) avoid crowds at all cost 2) wear a mask in public and only associate with people wearing masks in public 3) maintain some distance between people whenever possible and 4) keep your interactions in any space with people as limited, timewise, as possible.

    1. “cloth face coverings”, on the other hand, to be sure, have not even been subject to proper testing to determine anything.

      1. Yes. The effectiveness of a mask is both the material it is made of and properly wearing it. There is some data that suggests a cloth mask is slightly better than nothing, but probably good enough to limit the area where an infected person could potentially spread Covid.

        Also a mask does nothing if the wearer leaves their nose hanging out or do not extend it to the chin forming more of a “seal”. Might as well just not wear a mask at that point.

        If you are not interested in getting Covid the best avoidance strategy is simply to stay away from other people. Covid is spread by human to human contact 99.9% of the time. If you have to associate with people keep those interactions as short as possible and only deal with people who are wearing masks unless you stay at least a few feet away from that person (which is a good idea even if you are all wearing masks.)

  10. Does it matter at all that those testing positive now will be out of quarantine in time for the vote?

  11. “who can attend Senate proceedings”

    Is there a rule saying a senator who has been recently diagnosed with a virus or contagious disease can’t appear on the floor?

    1. Oops, I now see this has already been asked.

  12. If the quarantine period is 14 days, then everyone currently in quarantine will be free to attend on or about October 17. The Judiciary Committee can hold its hearings and send the matter to the Committee of the Whole with plenty of time to spare. Of course, it remains to be seen if any new senators will test positive.

    1. Quarantine isn’t 14 days. We have tests now. We don’t have to wait and see what happens any more.

      1. I believe that the false negative rate on non-PCR (“fast”) tests is sufficiently high that they are not recommended for ending quarantine. PCR tests can be processed in about 24 hours.

        It normally takes 7-10 days for an asymptomatic patient to lower the viral load enough to go negative on PCR, so the recommendation (where testing is plentiful, as should be the case for US Senators) is to start daily testing at 7 days.

        14 days is a figure chosen for cases where a second test cannot be made available, becuase a positive test will usually be negative again after 14 days asymptomatic.

        1. Testing can be as often as required. Time doesn’t decide, measurements do.

        2. Medical personel are allowed to go to work with 2 negative tests. Thats from friends working for three different hospital owners.

          1. What medical personnel do is much more important than what politicians do.

  13. … as if masks are any sort of guarantee you won’t be exposed to and get COVID.

    Viruses get around no matter what we do, folks. Self-righteous statements, even by Volokh Conspiracy bloggers, don’t make that untrue.

    1. Belligerently ignorant, anti-social clingers are among my favorite culture war casualties.

      And the carefully cultivated target audience of a white, male, right-wing blog.

      1. ‘Belligerently ignorant, anti-social clingers are among my favorite culture war casualties.’

        You do seem quite fond of yourself. And, you didn’t refute the point. Wear the cloth mask, bigot.

  14. You heard it here: if you get Covid, it’s because you are arrogant or incompetent or because someone else around you is arrogant and incompetent.

    It’s not a naturally occurring, naturally spread disease. It’s caused by enemies.

    Hatred makes otherwise smart people really, really stupid sometimes.

    1. And if you attend a BLM protest you can’t get Covid either. I does not spread as long there according to the media.

      1. It is a clever virus.
        It can tell time (curfews), count and compute percentages (occupancy limits), and be stopped by “cloth face coverings” that are ineffective against all other viruses and germs (CDC)..

    2. No – in THESE CASES where people were arrogant and imcompetant it seems fair to assign blame.

      But at this point all the GOP really seems to have is pointing at imaginary Dems and crying about meanness.

      1. If only the enemies would have executed the rituals correctly, no one would have gotten sick.

        Also, how dare anyone notice the inherent assholishness of this sort of finger-pointing.

        1. I wonder what the code word is for Covid vaccine from the elite. Probably some form of “pizza.”

  15. The question is, assuming the R’s do get knocked down to 50 or 51 Senators on the floor, what are the odds Susan Collins and Lisa Murkowski suddenly remember why voting on ACM before the general election is actually a wonderful, not at all hypocritical thing to do?

  16. The floor vote on ACB will almost certainly occur after the currently infected Senators are disease free; so the question is what other Republican Senators turn up positive within 14 days of the floor vote, or whether a quorum of the entire Senate will be needed for some interim procedural step.

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