There comes a point in most heist movies where the thieves’ plan seems to be coming off the rails. Each individual starts improvising and stonewalling in the hope that, with a bit of luck and scamming, it all comes off in the end. Sometimes it all works out in circumstances defying belief. But sometimes it doesn’t–with catastrophic consequences.
That is the moment Republican Senators find themselves facing in the attempted heist of the Supreme Court. McConnell’s Senate is confronting two simultaneous pressures: the first, to jam through the nomination of far-right Amy Coney Barrett at some point before Election Day; the second, to avoid being shut down by the COVID crisis engulfing top-tier Republicans in Washington, D.C.
With only a 12-10 majority on the Senate Judiciary Committee and a 53-47 majority in the body, Republicans cannot afford many losses, or the plot unravels. Donald Trump’s super-spreader event at the White House Rose Garden to celebrate the judicial coup has already infected Judiciary Committee members Thom Tillis (R-SC) and Mike Lee (R-UT). Wisconsin Republican Ron Johnson also reported testing positive on earlier this month. Though both Judiciary Committee members claim to be improving and now symptom-free, guidelines recommend quarantining for at least 10 days since symptoms first appeared. But those guidelines are not guarantees of safety: per the CDC, infected individuals can continue to shed the virus in upper respiratory specimens for up to 3 months after the onset of symptoms (though with reduced viral loads.) It is unclear whether Senators Lee or Tillis will be able to return in time to confirm Barrett. Meanwhile, other members of Congress and staff are increasingly reporting positive tests.
Given the precariousness of their situation, other GOP Senators are taking extraordinary risks: they either refuse to be tested or refuse to report the testing. While a few GOP Senators are being tested without incident, many are not. Iowa’s 87-year-old Senator Chuck Grassley refuses to take a COVID test even after direct contact with Senator Lee. South Carolina Senator Lindsey Graham has forced debate planners to switch formats in his debate with challenger Jaime Harrison–one of the closest Senate contests in the country–because he refuses to test for the virus. Many other GOP senators refuse to get tested or state the date of their last test, including Senate Majority Leader McConnell himself. Grassley’s case is particularly concerning because he is not only a Senate Judiciary Committee member but third in line for the presidency behind Trump if the worst should befall Trump, Pence and Pelosi–an event not entirely beyond the realm of possibility.
Some of these senators are using the fact that they have not been in contact with COVID-positive members and staff as an excuse. But the reality is that due to lack of universal testing and the Trump administration’s refusal to allow contact tracing, it is impossible for them to know if that is the case. Some younger senators may get COVID and remain symptom-free, yet infectious to others. A few senators who are also Judiciary Committee members who have been in contact with infected individuals are self-quarantining, including Ted Cruz (R-TX), Ben Sasse (R-NE), and James Lankford (R-OK). These senators tested negative for COVID before beginning self-quarantine. Still, there have been few reports of testing since then, despite the fact that infection may result many days after initial contact.
Senate Republicans are taking an enormous gamble. They know that just one or two more positive cases among their own could scuttle the entire Barrett nomination. So they are allowing their members to endanger the whole caucus though insufficient testing or refusal to test, praying that none of them get infected–or that if they do, they can stonewall through to take the deciding vote at some point before election day.
For now, McConnell is allowing the Judiciary Committee to continue to meet while delaying the Senate proper. But among the consequences of that decision is that Republicans are preventing passage of a COVID relief bill while continuing to force through the Supreme Court nominee process–a deeply unpopular move that could help seal the fate of the Senate Republican majority.
But if the Senate itself becomes another super-spreader event like the White House Rose Garden event (and indeed, it appears that Ms. Coney Barrett’s children may have spread the virus to their teachers and classmates this week by going in person, even though online classes were available), it could derail the nomination entirely and endanger the lives of everyone involved.
There were already excellent reasons for Senate Democrats to refuse to legitimize the heist of the Supreme Court by simply boycotting the proceedings. The reckless improvisation of Senate Republicans in risking the health of their colleagues and staff by refusing to test for the virus should be the last straw.
Perhaps they will get away with it. Perhaps they won’t. But either way, it courts catastrophe.