The Volokh Conspiracy
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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.
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.
