The Senate is expected to vote around 7:30 p.m., after an overnight session that will have lasted more than 30 hours. Once Barrett is confirmed, Trump will have appointed a third of the court’s nine justices — Neil Gorsuch, Brett Kavanaugh, and Barrett.
Democrats have panned the confirmation process as illegitimate and a blatant abuse of power by McConnell (R-Ky.). They argued that Barrett’s confirmation could threaten health care for millions of Americans, abortion rights, gun control, and other issues.
Republicans saw in Barrett a brilliant and highly qualified jurist who would uphold the rule of law and adhere to the late Justice Antonin Scalia’s “originalist” judicial philosophy.
Sen. Susan Collins (R-Maine), facing a difficult reelection fight, will join all Democrats in voting against Barrett’s nomination. Collins said her vote indicated her opposition to confirming a nominee to the high court before the election, and did not reflect her views on Barrett’s qualifications.
Sen. Lisa Murkowski (R-Alaska) announced that she would vote in favor of Barrett despite similar opposition to the process by which Barrett’s nomination was shepherded through the Senate, insisting that those circumstances should not be held against Barrett.
The confirmation vote comes amid fears of another coronavirus outbreak at the White House, this time involving Vice President Mike Pence’s inner circle.
Pence will not attend Monday evening’s vote, his office said, after some of his top aides, including his chief of staff, tested positive for Covid-19. Before news broke of their diagnoses, Pence had said he would preside over the Senate for the vote, as he has done in the past for significant votes.
White House chief of staff Mark Meadows said Monday morning that preparations were underway to hold a swearing-in ceremony for Barrett in the Rose Garden immediately following the Senate’s vote. The White House held a similar event when Trump unveiled Barrett as his choice, and several attendees at the largely maskless event contracted Covid-19, including Sen. Mike Lee (R-Utah) and Thom Tillis (R-N.C.).
Barrett was a law professor at Notre Dame before Trump nominated her in 2017 to serve on the Seventh Circuit Court of Appeals. The Senate confirmed Barrett to that position on a 55-43 vote, with a handful of Democratic votes.
But this year is different, and Senate Minority Leader Chuck Schumer (D-N.Y.) was able to unite his caucus around familiar messages.
Democrats have centered their opposition to Barrett’s nomination around McConnell’s decision to block former President Barack Obama’s nominee, Merrick Garland, in 2016. At the time, McConnell cited the proximity of the presidential election, saying the open Supreme Court seat should be filled by the next president.
McConnell has said the circumstances in 2016 were different because the White House and the Senate were controlled by different parties. Still, Senate Judiciary Committee Chairman Lindsey Graham (R-S.C.), who oversaw Barrett’s confirmation process, said in 2018 amid the ugly confirmation fight over Kavanaugh that he would not advance a Supreme Court nominee in an election year.
In addition to their objections over the process, Democrats focused almost entirely on the Affordable Care Act. The Supreme Court is set to take up the Trump administration’s bid to invalidate the 2010 health care law beginning Nov. 10, and Democrats have said Barrett would be the deciding vote to kill Obamacare.
At her confirmation hearings, Barrett offered few hints about how she might rule on cases involving the health care law, saying only that she was not “hostile” toward it. But Democrats highlighted her past criticisms of Chief Justice John Roberts’ decision to uphold Obamacare in 2012, in addition to Trump’s stated vow to appoint judges to the federal bench who would vote to overturn it.