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Sen. Dianne Feinstein (D-CA) speaks with reporters at the Capitol on February 14, 2023, after announcing that she will not seek re-election when her current term expires.
Nancy Pelosi, a self-appointed human shield for Dianne Feinstein over the past several years as the California senator’s cognitive decline became impossible to ignore, had a point to make. Responding to calls for Feinstein to retire—she has missed nearly three-quarters of all votes in the 118th Congress and has remained at home for a couple of months thanks to a bout of shingles, with no timetable for her return—Pelosi said, “I don’t know what political agendas are at work that are going after Sen. Feinstein in that way. I’ve never seen them go after a man who was sick in the Senate in that way.”
That men get special dispensation would come as news to Stephen Breyer, who wasn’t even sick yet faced demands to resign from the Supreme Court throughout 2021 and 2022, as the potential window of a Democratic president and Democratic Senate began to close. Those leading that charge knew that the risks of being unable to confirm a liberal justice who could serve for a generation were all too real; after all, it happened just a few years earlier, when Ruth Bader Ginsburg stayed on, eventually allowing Republicans to confirm her replacement.
The situation here is perfectly analogous. Democrats have a thin majority in the Senate, and their main job for the next 20 and a half months is confirming judges. Feinstein sits on the Judiciary Committee, and her indefinite absence gives that committee an even number of Democrats and Republicans. Under current rules, a deadlocked nominee cannot emerge from the committee to a vote on the Senate floor. Twelve nominees have had Judiciary Committee hearings but gotten no vote out of committee, since under current rules a tie means a loss; another six are awaiting hearings.
This is not an immediate issue; there are 18 judicial nominees who have been reported out of the Judiciary Committee and are awaiting a floor vote, enough to keep the Senate occupied for a while. But Feinstein’s continued presence in the Senate threatens to prevent Democrats from fulfilling their primary obligation until the 2024 elections, her gender notwithstanding. There is no indispensable politician, man or woman, if they get in the way of important political goals.
That’s why Democrats tried to fashion half a solution Wednesday night, with Feinstein asking to be “temporarily” replaced on the Judiciary Committee until she can return to Washington. Senate Majority Leader Chuck Schumer (D-NY) said he would honor the request: “Per Sen. Feinstein’s wishes, Majority Leader Schumer will ask the Senate next week to allow another Democratic senator to temporarily serve on the Judiciary Committee,” a spokesperson said.
The operative word here is ask. And here’s where we have to go into a discussion of the Senate rules, which could serve as an additional circle of hell if Dante were still alive to update The Inferno.
The Senate is a continuing body; senators who get appointed to committees remain on them across congressional sessions. At the beginning of a session, the size of committees and the names of the senators placed on them is agreed to by a floor resolution, which usually goes through under unanimous consent. All 100 senators have an interest in getting on their committees, so nobody is going to gum up that process.
Feinstein’s continued presence in the Senate threatens to prevent Democrats from fulfilling their primary obligation until the 2024 elections, her gender notwithstanding.
Mid-session changes to committees, due to the vacancies of seats or the admission of new senators, are also typically boring affairs. But they do require a resolution. So when Schumer says he will “ask” the Senate next week, what he means is that he will offer a resolution for unanimous consent to restructure the Judiciary Committee, with Feinstein off and a replacement senator on.
Any single senator could deny unanimous consent to that resolution. While it would be unusual to do so, this is a case where denying unanimous consent would block the ability for Democrats to eventually get their judges through. Indeed, NBC News reported yesterday that Republicans are disinclined to agree to whatever Democrats want with respect to Feinstein.
At that point, Schumer would have a few options. He could file cloture and attempt to push through the resolution by a vote. But that would require breaking a filibuster; he’d need 60 votes for that, and with Feinstein out, that means he’d have to get the vote of ten Republicans, who reportedly want a say in who replaces her. Sen. Kyrsten Sinema (I-AZ) was a name that was floated. Though Sinema is a pain on numerous levels, she has agreed to move every Biden judge forward. But giving her a plum slot would certainly rankle other Democratic senators.
Schumer could also try to reinstate a rule whereby tie votes in the Judiciary Committee can be discharged by a Senate floor vote. These were the rules in the last session of Congress, when the Senate was deadlocked 50-50. Republicans will almost surely object to this, but there’s a complicated method whereby the chair ignores the parliamentarian and allows such a change to take place by majority vote. Often called the “nuclear option,” it’s how several changes to the judicial nomination process have taken place in prior years. But Schumer would need every single member of the Democratic caucus—including Sinema and Joe Manchin—to agree to this. And if successful, it would eat up more precious floor time for each nominee tied up in committee to have to be discharged.
The cleanest way to solve this impending issue is for Dianne Feinstein, who may never come back to Washington again, to retire. Republicans will make the argument that Democrats are changing the rules midstream to get their activist judges onto the federal bench (although activism on the bench is a topic they should raise somewhat gingerly; see: Kacsmaryk). But if Feinstein retires, and her replacement is the one seeking the slot on Judiciary, that argument becomes far less potent. Republicans don’t want to be in the position of having their incoming senators denied committee slots; Sen. Pete Ricketts (R-NE), who replaced Ben Sasse earlier this year, got committees through a pro forma resolution passed with unanimous consent.
Because of the mutually assured destruction of the Senate rules, even Schumer’s initial plan to ask for a “temporary” replacement may get through. But a permanent replacement would be on much stronger ground. The decision to retire, of course, is entirely up to Feinstein, though she’s succumbed to pressure before, when she agreed to give up the chairmanship of Judiciary, not seek re-election in 2024, and now, this temporary maneuver.
(There’s a whole separate issue about who California Gov. Gavin Newsom would choose to replace Feinstein until the 2024 election for her successor. Two years ago, Newsom promised to appoint a Black woman if the situation ever came up. His likely choice would be Rep. Barbara Lee, who is running for the seat. But he would face serious criticism if he put his thumb on the scale in the middle of what is now an active and intense election campaign pitting Lee against her fellow Democratic members of Congress Katie Porter and Adam Schiff for the seat Feinstein won’t seek. Obviously, there are other Black women who would fit the bill, including current California Secretary of State Shirley Weber, civil rights attorney Connie Rice, and a number of former House members.)
But the problem lies not with Feinstein alone. Senate Judiciary Committee chair Dick Durbin (D-IL) continues to give Republicans a veto on district court nominees in their home states through the “blue slip” procedure. Invoking this procedure, Republican senators Cindy Hyde-Smith (R-MS) and Ron Johnson (R-WI) have rejected Biden judicial nominees already, and Republicans will surely do it again whether there’s a full Judiciary Committee or not. Durbin cannot possibly moan about Feinstein’s absence tying Democratic hands on the committee, as he has done, and not address the handcuffs he’s put on himself by honoring an outdated tradition.
Given the enormous power federal courts have aggrandized for themselves, with not enough pushback from the other two branches, the Senate often is reduced to nothing more than a judicial confirmation factory. But self-imposed rules, selfishness from senators, and the general right for anyone with a Senate lapel pin to obstruct anything at any time minimizes the Senate’s ability to do anything more—or at least it does when Democrats are in office. That the rules make finding their way out of this box more difficult than it should be suggests that there’s something wrong with both the rules and the box.
A House of Lords sounds pretty good right about now.
