Sen. Dianne Feinstein’s prolonged absence from Capitol Hill is putting Republicans and Democrats in an awkward position.
Her medical leave is holding up nominees in the Senate Judiciary Committee, where Feinstein is a member, and putting Democrats down a vote in the narrowly split chamber. It’s unsustainable if Democrats want to actually confirm judicial appointments, especially at the pace Republicans did when they held the Senate majority.
After Senate Republicans blocked a motion for Sen. Ben Cardin (D-MD) to serve as a temporary replacement for Feinstein on the Judiciary Committee on Tuesday, Democrats are nowhere closer to a solution.
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The situation is delicate. Members of both parties are trying to claim that they’re doing the right thing while also doing the thing that’s most politically expedient for their party.
For Republicans, that means blocking a replacement—even a temporary one—that would open up the judicial nominee spigot while Feinstein recovers. Allowing Cardin to take her place, they argue, would be disrespectful to Feinstein, who has served on the Judiciary Committee since she came to the Senate in 1993. It’s perhaps just a happy accident that replacing her means Democrats can’t confirm judges.
For Democrats, forcing Feinstein to come back while she’s recovering from shingles, just so Democrats can conduct their normal business, is a new low. They argue that a temporary replacement would allow Feinstein to recover on her timeline and not hold up the Senate’s business—business they’d desperately like to get back to in order to remake the federal judiciary.
With a growing backlog of judicial nominees from President Biden and a critical summer of votes approaching, nobody seems ready to budge on calling for Feinstein to outright retire. And nobody wants to kick an 89-year-old, once-trailblazing senator when she’s down.
In that hesitancy, Democrats and Republicans have entered a battle for moral high ground on the matter, wherein everyone is trying to avoid being the bad guy and call out the other party for being at fault.
Some Democrats, like Reps. Ro Khanna (D-CA) and Dean Phillips (D-MN), are arguably the exceptions. They’ve said since last week that Feinstein should retire. She hasn’t voted since Feb. 16 on behalf of the more than 39 million Californians she represents, and there’s no telling when she’ll actually be ready to return to work.
But others have remained aghast at the idea of unceremoniously pushing Feinstein out after her five decades in public office. They argue she should be given space to recover from her medical ailment—as other senators this term have—and to end her career on her own terms.
“This is all on Dianne, more than anything,” Sen. Jon Tester (D-MT) told The Daily Beast Tuesday. “And Dianne has been here and accomplished some marvelous things. And she will have to make a decision whether she’s gonna continue or not. But it’s not my decision or anybody else’s. It’s got to be hers.”
Tester added that Feinstein understood “the functionality—or lack of functionality—that’s been created.”
Sen. Elizabeth Warren (D-MA) told The Daily Beast Monday evening that Feinstein had served the Senate honorably for decades. “The senators should be willing to accord her the courtesy and respect to let her step away from the Judiciary Committee and let another Democrat take her place,” Warren said. “It’s pretty outrageous for Republicans to block that.”
The supposed admiration for Feinstein extends well into the Republican caucus, with GOP senators this week insisting they respect her above all else.
But Republicans also contend that they’re ready to block her request for a temporary replacement on the Judiciary Committee, as they did Tuesday. Senate Majority Leader Chuck Schumer proposed the replacement by unanimous consent—and Sen. Lindsey Graham (R-SC) swiftly rejected it. That was that, at least for now.
Some Republicans have suggested that Feinstein is being edged out of the committee on purpose—and they don’t want to perpetuate that. Again, like Democrats, Republicans are trying to find some moral justification for their actions.
“Senator Feinstein has been an extraordinary senator, and she’s a good friend of mine,” Sen. Susan Collins (R-ME) said Monday. “During the past two years, there’s been a concerted campaign to force her out of the Judiciary Committee and I will have no part of that.”
Other GOP senators say Democrats are playing politics with the situation, that it’s all some sort of twisted plot to force Feinstein out of office altogether.
“I think what they’re trying to do is force her to resign,” said Sen. Josh Hawley (R-MO) on Tuesday.
“This is a maneuver designed to fail,” he added. “This has never been done—this kind of swapping one member for another. I think they know it’ll fail. And then they’ll flip around and say to her, ‘See, you have to resign.’ And it’s terrible.”
Sen. John Kennedy (R-LA) originally said he didn’t know whether or not he’d support a temporary replacement for Feinstein, before later voting against it. In an exchange with The Daily Beast Monday, however, Kennedy repeatedly noted Feinstein’s statement that she is coming back “soon,” and he believes her.
“I take her at her word. She’s always been truthful with me,” Kennedy said.
It’s unclear how “soon” Feinstein’s “soon” actually may be. In a statement last week, Feinstein said she’d “expected to return by the end of the March work period” but that “complications related to [her] diagnosis” were causing delays.
Questions about the patience of Democrats for her return remain unanswered. For now, they seem content to let her continue to recover while they proceed with the handful of bipartisan judicial nominations that can get through committee. But eventually, that well of options will run dry.
Democrats seem to believe Feinstein has earned some leeway through her decades of service. She was the first female member to serve on the Senate Judiciary Committee, and she was the first female to chair the panel. For many, it’s been an unfortunate progression to see someone with a storied career likely to go out on a relatively low note—either via early retirement, or via her planned retirement, perhaps a few years too late, in 2024.
The truth is Feinstein’s ability to effectively serve as a senator has been in question for years. A number of reports have found that her mental acuity and memory aren’t nearly as sharp as they once were. And her proclivity for operating in a different era of politics—either by working too trustingly with Republicans or by being too dismissive of younger and more progressive voices—has certainly frustrated a number of Democrats.
Senate Democrats already prevented her from retaining the top post in 2020 on the Senate Judiciary Committee amid concerns about her ability to lead the group’s high-profile work.
And her ultimate retirement next year was widely expected and celebrated. So much so that ambitious California Democrats like Reps. Katie Porter and Adam Schiff announced their respective bids for the Senate seat even before Feinstein announced her retirement plans.
(Rep. Barbara Lee announced shortly thereafter.)
But Feinstein’s legendary career—and largely unceremonious close to it—has led to an all-around somber tone on the Hill. In other retirements for longtime lawmakers, like Sen. Patrick Leahy (D-VT) last year or Orrin Hatch (R-UT) in 2018 or even Daniel Akaka (D-HI) in 2012, their exits were moments of triumph.
Leahy, who struggled with a broken hip in his final term, announced his retirement in a press conference in Vermont. He gave the customary floor speech to mark his final days in the Senate. He made the rounds—and got plenty of applause on his way out.
But Feinstein’s retirement announcement came with relatively little fodder around the Senate. With her health limiting her ability to return to the Hill, in addition to lingering questions on whether she’ll retire sooner than expected, it’s unclear whether she’ll be privy to the same sort of pomp and circumstance as other longtime senators.
And yet everyone, in their own way—even if it’s with a bit of a self-serving grin—insists she should be.
As Hawley said, “I just want to see her treated with respect.”
