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Supreme Court Opens A New Term Amid A Push For Amy Coney Barrett's Confirmation

AILSA CHANG, HOST:

The U.S. Supreme Court opened a new term today with Chief Justice John Roberts giving a short tribute to the late Justice Ruth Bader Ginsburg.

(SOUNDBITE OF ARCHIVED RECORDING)

JOHN ROBERTS: Justice Ginsburg's contributions as advocate, jurist and citizen are immeasurable. We at the court will remember her as a dear friend and a treasured colleague.

CHANG: The court is hearing arguments, while across the street at the Capitol, Senate Majority Leader Mitch McConnell is moving aggressively to push through confirmation of President Trump's nominee to replace Ginsburg, Amy Coney Barrett. Joining us now to talk about all of this is NPR legal affairs correspondent Nina Totenberg. Hey, Nina.

NINA TOTENBERG, BYLINE: Hi there, Ailsa.

CHANG: Hi. So lay out the various factors entering McConnell's calculation here. Like, why is he pushing so hard to get the confirmation vote done now with the election less than a month away?

TOTENBERG: Well, there are lots of reasons. First of all, he wants Barrett in place in case there's a challenge over the election itself. There are a lot of election cases being teed up in case there's not a decisive winner. And we could be looking at another Bush v. Gore case, except it would be Trump v. Biden or Biden v. Trump. Secondly, he wants to get this done before the election because the political calculus in a lame-duck Senate session could be very different if the Democrats win the presidency and/or control the Senate. And third, Mitch McConnell has spent a lifetime with a single aim, I would say, and that is conservative control of the Supreme Court and the lower courts. And getting Barrett added to the Supreme Court would seal the deal.

CHANG: Right. Well, three Republican senators tested positive for COVID-19. Two of them are on the Senate Judiciary Committee. They had attended a celebration for Amy Coney Barrett at the White House nine days ago. Several people who attended tested positive later. There was little social distancing. There were very few masks. And I'm curious, with those senators who are on the committee sick now, I mean, how feasible is it for Republicans to keep pushing ahead with the confirmation schedule, you think?

TOTENBERG: Mitch McConnell is a master strategist, and they're still on track, but their execution has to be perfect. They can't have many more GOP senators get COVID-19. It could really throw a spanner in their plans. For instance, the Judiciary Committee confirmation hearings are set to begin next Monday, with a vote in committee scheduled the following Monday. But what if there isn't a quorum for a vote? Senators can vote by proxy, but there has to be a quorum present in the room. And the Democrats likely would stay away if they could deny the Republicans a quorum. Of course, McConnell could then take the nomination directly to the floor, skip the committee vote. But the optics of that aren't great either. It hasn't been done, I think, in about a century. And if he wants to change the rules to allow remote participation on the Senate floor, he has to have 60 votes to do that.

CHANG: Right.

TOTENBERG: So as I said, his execution has to be perfect.

CHANG: Well, if Amy Coney Barrett is confirmed quickly, right before the election, tell us how you see her presence affecting the court.

TOTENBERG: Well, right now, there are five conservative justices on the court. And because Chief Justice John Roberts occasionally votes with the liberals, he's been the controlling vote, and he's been able to exert his institutionalist view of the court and not start reversing lots of decisions. And his idea is to keep the court sort of out of the headlines as much as possible. But that would no longer be true if there's another conservative vote. Six very conservative justices on the court, and if one of them flakes off...

CHANG: Right.

TOTENBERG: ...On a case, it really doesn't matter. And a lot of experts expect that we could be looking at a court that's more conservative than any court since the 1930s, and that would have pretty profound consequences.

CHANG: That is NPR's Nina Totenberg. Thank you, Nina.

TOTENBERG: Thanks, Ailsa. Transcript provided by NPR, Copyright NPR.

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