The coronavirus outbreak gripping the White House spread to Capitol Hill on Friday morning, raising the prospect that the virus could disrupt Republicans' plans to confirm Amy Coney Barrett to the Supreme Court before the November election.
Two Republican members of the Senate Judiciary committee — Mike Lee of Utah, and Thom Tillis of North Carolina — revealed Friday that they have tested positive for the potentially deadly disease.
Their positive diagnoses raised concerns that the virus had spread at a Saturday Rose Garden ceremony, at which Trump announced he was nominating Amy Coney Barrett to the Supreme Court.
On Saturday morning, Republican Senator Ron Johnson of Wisconsin said he has tested positive for COVID-19. His office said he is not experiencing symptoms.
The senators are among a growing number of people who attended the event, which featured few masks and little social distancing, who have since tested positive for the virus.
Trump, the first lady, and top Trump aide Hope Hicks all attended the event and subsequently tested positive, showing symptoms in the expected five- to seven-day window following the event. Also Friday, the president of the University of Notre Dame, the Rev. John Jenkins, announced he, too, had tested positive for COVID-19. Jenkins attended the Saturday Rose Garden ceremony.
Earlier in the week, Jenkins sent a letter to university students and staff apologizing for not wearing a mask during Saturday’s Rose Garden ceremony for Barrett, who is a Notre Dame graduate and law professor.
Video of the event also shows Lee unmasked and hugging other attendees.
Both Lee and Tillis said they would isolate for 10 days. Lee vowed in a statement that he would “be back to work in time to join my Judiciary Committee colleagues in advancing the Supreme Court nomination of Judge Amy Coney Barrett.”
While the Centers for Disease Control recommend those who test positive should isolate for at least 10 days after their symptoms appear, the agency said doctors may recommend longer isolation periods depending on the severity of the disease.
Guidelines issued by the CDC dictate that Barrett should quarantine for 14 days, because she met with Lee in person (and without masks) a few days ago.
Barrett was diagnosed with the virus over the summer but has since recovered, The Washington Post reported Friday — information that had not previously been made public. The science on immunity following recovery is unsettled. Though public health experts generally believe recovery from COVID-19 confers some immunity and the World Health Organization has said repeated infections are not common, researchers in Hong Kong recently reported evidence that a second infection is possible.
Since receiving the Supreme Court nomination, Barrett is being tested for the virus daily and had a negative result Friday morning, according to the White House. She visited Capitol Hill several times over the past week, meeting with roughly 30 senators in one-on-one meetings to discuss her nomination, according to the Post.
Senator Lindsey Graham, a South Carolina Republican who is chairman of the Senate Judiciary Committee, tweeted that he planned to proceed with Barrett’s nomination on Oct. 12 as scheduled. It was not immediately clear how the committee would proceed if either Lee’s or Tillis’s isolation extends beyond 10 days.
Republicans enjoy a two-seat majority on the Judiciary Committee, which means Republicans could afford to have one but not both of the COVID-positive senators miss the committee vote to approve it and send it to the Senate floor for a final vote.
Republicans, who hold a three-seat majority in the Senate, also can’t afford to have many members out sick for a final confirmation vote, given that two of their members — Lisa Murkowski of Alaska and Susan Collins of Maine — have indicated they won’t support Barrett if the vote comes before Election Day.
Senate majority leader Mitch McConnell "is working with particularly slim majorities. If Collins and Murkowski vote against cloture and if Mike Lee still out, that leaves the vote at 50-50 with VP breaking the tie. Republicans can’t afford to have another senator miss the floor votes,” Sarah Binder, a congressional expert with the Brookings Institution, said before the news broke that Tillis had also contracted the virus.
A few scholars, most notably Laurence Tribe in a recent op-ed for the Globe, argue that the Constitution does not allow a vice president to break ties on nominations, just legislation and therefore that Pence would not be able to cast a vote to confirm Barrett.
Most experts don’t share that view, and point to the fact that Democrats did not challenge Pence votes to break ties on a handful of Trump nominations, including on the 2018 confirmation of a judge to the Eighth Circuit.
In an e-mail to the Globe, Tribe said that “a number of leading Democrats have told me they found my analysis persuasive,” raising the possibility that they could raise objections with the Senate Parliamentarian should Pence move to cast a tie-breaking vote on Barrett.
Earlier in the day, before Lee’s announcement, McConnell vowed Senate Republicans would continue “full steam ahead” on Barrett’s nomination.
But pushback to that idea started to mount Friday, and further positive tests on Capitol Hill could increase the pressure on Republicans to delay.
Senate minority leader Chuck Schumer and Senator Dianne Feinstein of California, the top Democrat on the judiciary panel, called it “premature” for Graham to continue with the hearing schedule as planned before the full extent of potential coronavirus exposure from the White House outbreak is known.
“The unfortunate news about the infection of our colleague Senator Mike Lee makes even more clear that health and safety must guide the schedule for all Senate activities, including hearings,” the Democrats said.
They signaled that Democrats would not consent to a “virtual” hearing for such a consequential nomination, saying that it is not an “appropriate substitute.”
The senators said that it is “critical that Chairman Graham put the health of senators, the nominee, and staff first — and ensure a full and fair hearing that is not rushed, not truncated, and not virtual. Otherwise this already illegitimate process will become a dangerous one.”
Christopher Kang, chief counsel at Demand Justice, a liberal group focused on judicial reform that opposes Barrett’s nomination, said the positive coronavirus tests and the uncertainty of who else may have been exposed means senators need to adhere to public health guidelines.
"Chairman Graham barreling ahead with an already rushed process at this point could jeopardize the safety of not only Senators and the nominee but also of support staff and people they come into contact with, and it would set a terrible example for people dealing with the virus across the country.”
This report, which was updated with new information on Saturday, includes material from the Associated Press.