Law & the Courts

The Barrett Vote: There’s Not a Good Reason for Mike Pence to Preside Over It

Vice President Mike Pence speaks to residents at The Villages, a retirement community north of Orlando, Fla., October 10, 2020. (Gregg Newton/Reuters)
After being exposed to a COVID-infected staffer, why would the vice president sit in a windowless room with elderly senators on Monday night?

Five aides to Vice President Mike Pence, including chief of staff Marc Short, have tested positive for COVID-19. Pence and Short reportedly were in close contact as recently as Friday, but Pence has decided to continue campaigning across the country — and preside over the Supreme Court confirmation vote of Amy Coney Barrett in the U.S. Senate on Monday night — rather than self-quarantine as the CDC recommends.

“As vice president, I’m president of the Senate,” Pence said at a rally in Florida on Saturday. “And I’m going to be in the chair because I wouldn’t miss that vote for the world.”

Presiding over the vote obviously would make the vice president feel good, and the photo of the moment could come in handy in 2024, but Pence’s presence is not necessary. There are 52 senators who intend to vote for Barrett and 48 senators who intend to vote against Barrett. It would take the absences of four Republican senators who support Barrett to make a tie-breaking vote by Pence necessary.

So why would the vice president be in the Senate on Monday night, three days after he was in close contact with a person infected with the coronavirus?

Pence has been testing negative on a daily basis over the weekend, but it’s not clear how effective tests are at detecting infections before the onset of symptoms. Why take the risk sitting in a windowless room with a bunch of senators who are in their 70s and 80s? As the presiding officer of the Senate, Pence would be sitting fairly far away from senators, but floor staff would be in closer proximity.

Any senator who wants to do so may cast a vote from a doorway to the Senate chamber, as a few did on Sunday during the vote to cut off debate on the Barrett nomination. But even if it’s not very risky, Pence’s presence creates a controversy that tarnishes Senate Republicans a week before the election. Earlier this month, Senate majority leader Mitch McConnell criticized the White House’s cavalier approach to the virus.

It’s true that Democratic Senate leader Chuck Schumer has insincerely tried to use pandemic concerns to block a vote on Barrett. Last week, Schumer said it was too dangerous for the small number of Judiciary Committee members to conduct a socially distanced hearing. This past week, Schumer forced the Senate into a closed session that required the doors to the Senate chamber to be literally locked with the senators stuck inside — a stunt to show the Democratic base that he was fighting. When he speaks on the Senate floor, Schumer takes his mask off, as most other Republican and Democratic senators do. But Schumer’s insincerity is not a reason for Pence to do something that has no potential upside and presents at least some risk to others.

President Trump’s former FDA commissioner Scott Gottlieb was asked on Sunday during an appearance on CBS’s Face the Nation whether Pence was putting others at risk by campaigning. “He could be closely monitored, so the short answer is yes, but you can closely monitor the vice president,” Gottlieb said. “I would understand why they wouldn’t want to quarantine the vice president, but they need to be very explicit about what they’re doing, and the risks that they’re taking. He should be wearing a high-quality mask — an N95 mask — at all times. He should be distancing wherever possible. They should be serially testing him.”

Outdoor campaign events may be ill advised because there are still staffers who have to travel with Pence, but it’s even harder to justify a totally unnecessary appearance at the Senate on Monday.

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