Senator Feinstein’s Final Term

The story so far

Our senior senator, Dianne Feinstein, has been out since February 27 with shingles and has been unable to return to DC for in-person work such as committee hearings.

This has left the Committee on the Judiciary unable to conduct regular business—in particular, voting on President Biden’s federal court nominees. Democrats have a one-vote majority on that committee, and Senator Feinstein is that one vote.

With the committee tied, nominees that receive at least one Republican vote (with no Democratic dissenters) can still pass the committee, but any that don’t are stuck, as party-line votes won’t pass without a majority.

The tied Committee also can’t take any actions to dig into the growing scandals of Justice Clarence Thomas’s alleged corruption. Hearings, much less impeachment, can’t get off the ground until the Committee on the Judiciary has the votes.

Senator Feinstein is on several committees, including the Committee on Appropriations, which will become important later this year. But the focus right now is on the Committee on the Judiciary, the committee responsible for first approvals of federal judge nominees before their consideration by the full Senate.

Senator Feinstein’s proposal

Acknowledging that she’s been out longer than she’d anticipated and that this is holding up committee business, Senator Feinstein has suggested that Majority Leader Chuck Schumer ask the Senate to allow another Democratic senator to temporarily serve on the committee until her return.

Temporary committee replacements have been made in the past, for Sen. Bob Menendez due to his indictment, and for former Sen. Richard Burr while he was under investigation for insider trading. However, it is already apparent that the Senate Organizing Resolution for this Congress—adopted in February 2021—will not be amended as smoothly.

Yesterday, Leader Schumer proposed an amendment to this Congress’ Organizing Resolution to propose a temporary replacement for Senator Feinstein’s slot on the Judiciary Committee. He had hoped to elicit unanimous consent for this effort, but Sen. Lindsey Graham objected. The next thing the Leader can try is to invoke cloture. That would need to win sixty votes (i.e., ten Republican votes required) in order to pass.

The Republicans’ motive to obstruct is plain: the Committee on the Judiciary shapes the federal courts, and thereby shapes the future of all legislation passed by Congress. Republicans are determined to continue their quest for domination of every part of government—including the judicial branch—by any means necessary. They are likely to object to a temporary Judiciary Committee membership because the current bottleneck of judicial nominations suits them just fine.

It’s not clear what happens if the Senate passes this resolution and then Senator Feinstein comes back. One possibility is that they go back to the previous organizing resolution without difficulty. The other possibility is that they might need to go through the whole dance again.

What if this doesn’t happen?

As long as no new organizing resolution is passed to supersede the one the Senate has been working under, the current one remains in effect.

That means that if this goes on long enough, or Leader Schumer gives up, we go back to the status quo of a tied committee. It also means that if Senator Feinstein comes back, we then go back to having a majority on the Committee on the Judiciary with no further disruption.

Can Senator Feinstein work remotely?

She’s reportedly been working from San Francisco in some capacity, though the scope of that work has not been detailed publicly. What she can’t do is vote—senators must be present in person for that.

The Senate could change this by a majority vote; see our call script from 2020 for more info on that. That makes it easier—at least in terms of the vote threshold—than changing the organizing resolution.

It’s not really clear why Leader Schumer and other senators don’t seem to have considered this option. We could only speculate. Instead, the path receiving the most discussion has been…

Resignation

Pro-democracy groups nationwide have been calling on Feinstein to resign for a while now. Her resignation would give Governor Newsom the opportunity to appoint her replacement, filling the crucial Senate seat smoothly with a solid progressive Democrat.

It should be noted that with Minority Leader McConnell and Senator Fetterman having also been out for about a month due to health issues, some critics, such as our own Representative Pelosi, have suggested the calls for resignation are tainted with gender bias. McConnell’s absence, at least, was due to something altogether less chronic (he was recovering from a fall), and Fetterman’s less age-related (seeking treatment for depression). Still, we should beware of gender bias and try to avoid upholding double standards.

Newsom has previously committed to appointing a Black woman if the opportunity arose. He could choose Rep. Barbara Lee for the post. But since she has already announced her candidacy for 2024, he may appoint someone else as a “caretaker” Senator, holding the seat until the election. If he does appoint one of the candidates, that will give them an incumbent advantage in the election, much as happened with Sen. Alex Padilla.

However, the new senator may run into the same brick wall of changing the Senate’s Organizing Resolution for this Congress. Even if Governor Newsom’s appointee is seated as a senator, the Republicans might refuse to seat that person on any committees. Republicans might come up with another of McConnell’s famous “not in an election year” new rules, or they might just drag out negotiations over the new senator’s committee assignments. Such obstruction would be unprecedented, but that hasn’t stopped Republicans in the past.

There are two possibilities that give a small amount of hope for getting things settled quickly. The first is that if a new senator is appointed and Senator Schumer puts an existing senator into the key Judiciary Committee seat, there will be less obstruction from the Republicans regarding other committee assignments for the incoming senator.

The other possibility is that if holding up committee negotiations would interfere with Republicans achieving other objectives in the Senate, they probably won't want to hold things up indefinitely.

For what it’s worth, there have been some Republicans, such as Sen. John Cornyn, saying that they would support committee changes for an appointed replacement, just not temporary changes. Whether this means anything or is another instance of Lucy setting up the football is anyone’s guess.