Along with speculation about Senator Dianne Feinstein’s health and ability to serve, the California Democrat’s two-month absence from the Capitol earlier this year exposed the deep partisan distrust that pervades the US Senate and threatens to undermine a vital of President Biden’s agenda.
Democrats remain skeptical of Republican assurances that if Feinstein, 89, leaves office before her term ends in early 2025, there would be no political game in replacing her on the powerful Senate Judiciary Committee, the tightly divided panel that votes on Biden’s federal justice nominations.
Feinstein’s return to Washington last month eased but did not eradicate those concerns, given his age, frail health, and obvious difficulty keeping up a busy schedule and maintaining all of his duties. a senator.
“One of the unknowns is whether the Republicans would take his seat. That’s the big unknown for me,” Sen. Richard Blumenthal (D-Conn.) told The Times.
Earlier this spring, while she was still out, Republicans rejected a Democratic effort to temporarily replace Feinstein on the committee with Sen. Ben Cardin (D-Md.) — with some saying there was no no precedent and a GOP senator saying Republicans weren’t going to “help what we consider controversial or unqualified candidates get confirmed.”
The lack of faith in Republicans — especially if a Supreme Court seat were to open up — stems from 2016, when then-Senate Majority Leader Mitch McConnell (R-Ky.) blocked the review of President Obama’s nomination of Merrick Garland to the United States Supreme Court to fill a vacancy left by the death of Justice Antonin Scalia.
McConnell’s move, which pushed the court farther to the right, remains etched in the minds of Senate Democrats.
“He proved relentless in his cunning,” Blumenthal said of McConnell.
While recovering from a case of shingles, Feinstein missed dozens of votes and, due to the Judiciary Committee’s tight voting margins, her absence slowed the judges’ approval process even as some candidates been able to pass with bipartisan support. A Recent Times poll found that about 42% of voters wanted her to step down so Governor Gavin Newsom could appoint a replacement for the remainder of his term. Two-thirds said her condition meant she was unfit for a position.
Newsom has promised to nominate a black woman if one of California’s U.S. Senate seats opens up — a calculation made more difficult because the field vying to replace Feinstein at the end of his current term includes only a formidable black candidate: Democratic Rep. Barbara Lee of Oakland.
If Feinstein were to resign, Newsom’s appointee would not automatically be placed on the committees they sit on — meaning the Judiciary Committee would have 10 Republicans and 10 Democrats.
In the event of a sudden vacancy in the Senate, a vote to add a senator to a committee would be routine. Unlike the decision to replace her temporarily this spring, some senior Republicans insist there are ample precedents for replacing her on committees permanently and have suggested such a move would not be controversial.
Senate Historian Emeritus Donald Ritchie says Feinstein’s absence was far from the longest, and her infirmities while still in office were far from the most severe in history. from the room. This is an organization that over the years has had a number of elderly and ill members who needed to be accommodated.
There was, he said, Sen. Virginia Carter Glass, chairman of the powerful Appropriations Committee in the 1940s, who did not report for work for four years after suffering cardiac incapacitation.
Then there was California Senator Clair Engel, who had to be hauled to the Senate floor in 1964 to break an epic filibuster during the Civil Rights Act debate. Suffering from a brain tumour, Engel couldn’t speak, so instead of saying “yes”, he stuck out his eye to signify his vote and cement the passage of the landmark legislation. He died six weeks later.
Ritchie said members are aware of this history and that in the past, senators have always been very cooperative regarding the health of their colleagues and replaced them if they were unable to complete a term. That collegiality stemmed in part from the belief among senators that “it could happen to me too,” he said. McConnell, 81, missed about a month of work this year after a fall resulted in a concussion and broken ribs.
But now, “the judiciary is the most polarized committee in the Senate,” he said. “It’s not clear that anyone else could be on the committee if Feinstein couldn’t serve. Partisanship prevents that from happening. It’s a shame. The institution suffers from this level of political partisanship.
Throughout his absence and in the first weeks of his return, Democrats have mostly refrained from speculating about Feinstein’s future in the Senate. Many said it was up to her whether she was fit to serve or not — while reiterating how important it was for her to be on Capitol Hill to vote for the party.
Then late last month, former Senator Hillary Clinton opened up the conversation in an interview with Time magazine.
“Here’s the dilemma: Republicans won’t agree to add someone else to the Judiciary Committee if she retires,” she said.
“I don’t know in her heart whether she would really want to or not [resign], but right now she can’t. Because if we want to have the judges confirmed, which is one of the most important ongoing obligations we have, we cannot afford to leave his seat vacant.
Sen. Sheldon Whitehouse of Rhode Island, who sits next to Feinstein on the Judiciary Committee, followed by a tweet. “Hillary understands: The same rule Republicans used to block Dianne’s replacement on the bench while she was ill can also be used if she resigns from the committee or the Senate altogether,” he wrote.
McConnell, who would need to muster the necessary votes for a replacement for Feinstein, declined to comment for this article.
Longtime Republican strategist Scott Jennings, who is based in McConnell’s home state of Kentucky, said his former boss was “not an anti-institutionalist. It never was, despite the Democrats’ hyperventilation.
“There may be a routine vacancy,” Jennings said. “Therefore, it should be governed by the standards and rules by which we would normally operate. I would just be amazed if somehow the majority party couldn’t function normally.
Sen. Lindsey Graham (RS.C.), who serves on the Judiciary Committee, said if Feinstein resigns, he “would be in camp to follow Senate precedent, replacing the person, consistent with what we have done in the pass .”
In a recent interview, Graham told The Times that he respects Senate traditions and would not want to see them undermined at this time. He added that he thought that scenario was a lot different from Garland’s nomination, when Democrats were “trying to get someone confirmed in an election year.”
Two key McConnell allies took similar views to Graham but were far less committed than the South Carolina lawmaker. Second-ranking Senate Republican John Thune of South Dakota told The Times it was “just speculation” at this time, but acknowledged there was “precedent for someone who permanently step down” for his replacement to get assignments on the committee.
Another member of the Republican Judiciary Committee, Senator John Cornyn of Texas, close to McConnell, made a similar point.
“There would be a negotiation, but I think the biggest objection was trying to do it temporarily,” Cornyn said. “I think if the seat were vacated it would be very different.”
Feinstein’s return allowed the committee to take over and send to the full Senate four justices who lacked Republican support. There are currently 74 judicial vacancies and 29 appointments that are either pending in committee or awaiting a vote of the full Senate. In his first two years in office, Biden was able to secure more lifetime federal bench appointments than either Trump or President Obama.
Yet comments from elected officials like Graham leave Democrats little comfort.
“We’ve seen Republicans breaking all kinds of traditions,” said Sen. Chris Coons (D-Del.). “I believe that ten years ago his request to consider a temporary reassignment off the committee would have easily been granted.”
This story originally appeared in the Los Angeles Times.