The Senate’s Feinstein Question

When an ailing Senator asked Dianne Feinstein in April to be temporarily replaced on the Judiciary Committee so Democrats could continue the panel’s work without her while she recovered from shingles at home in California, Republicans refused and blocked the replacement. Mrs. Feinstein was forced to return to Washington long before many around her believed she was ready so that her party could continue to advance President Biden’s judicial candidates.

A lingering question has hung over the Senate ever since, even as the 90-year-old Ms. Feinstein has refused to step down before the end of her term in 2025: Would Republicans be able or willing to prevent Democrats from replacing her on the committee if she did? a step aside, a departure that would open the door for an appointee chosen by the state’s Democratic governor to complete her term?

No definitive answer has emerged – and the proposal may never be tested since Ms Feinstein has said she’s not going anywhere. But the question has major implications, both for the Senate itself and for California politics.

Should Ms. Feinstein resign early, California’s governor would appoint a temporary senator who could then have a head start in the hotly contested Democratic race to succeed her in January 2025. Gov. Gavin Newsom has said he would nominate a black woman , which could work to the detriment of other candidates in the race. The idea that an early exit from Ms Feinstein could jeopardize Mr Biden’s judicial candidates is seen as one more reason for her to stay.

Still, senators in both parties suggest that’s unlikely, and that Republicans could concede and fill an actual vacancy on the Judiciary Committee, as opposed to a temporary one.

A major reason is that the Senate is an institution strongly tied to precedent – and a deep-seated reflex to treat others as they have done to you. Blocking a committee replacement for a lawmaker who has been forced to leave the Senate before her term is up is the kind of decision that could haunt Republicans, as they themselves have senior members who could find themselves in such circumstances.

Democrats would then have the ability to deny anyone a seat, which they would no doubt abuse if they saw it as just retaliation. As in other circumstances, the tit-for-tat can quickly escalate into a brawl that would prove costly to both sides.

Members on both sides of the aisle say the difference between temporarily vacating a seat and replacing a retiring member is significant, and they believe Democrats should retain their majority on the influential panel.

“I can’t imagine that happening,” Texas Senator John Cornyn, a senior Republican member of the Judiciary Committee, said of the prospect of preventing Democrats from putting a new member on the panel if Ms. Feinstein leaves. “I think that would be unsustainable.”

He added that the speculation on the issue “has to do with California politics and who wants to run to replace her.”

In an interview this year on CNN, South Carolina Senator Lindsey Graham, the senior Republican on the committee who formally objected to a temporary stand-in for Ms. Feinstein, also said he would be “in the camp to replace the person” if Ms. Feinstein or another senator opened a slot by giving up a seat early.

Not everyone is convinced. Hillary Clinton, herself a former member of the Senate, helped revive the issue last month when she said in an interview with Time magazine that she believed Republicans would block a replacement to thwart an attack on judges.

“If we get judges confirmed, which is one of the most important ongoing commitments we have, then we can’t afford to let her seat remain vacant,” Mrs. Clinton said.

And Sen. Sheldon Whitehouse of Rhode Island, a senior Democrat on the committee, rekindled the flames this month by saying on Twitter: “The fact is simple: if Senator Feinstein resigns, Mitch McConnell gets to decide whether the Democrats have a majority in the judiciary in the Senate. ”

The suspicion that Republicans could block a replacement is driven not only by the fact that they blocked a temporary replacement, but also by the reality that Senator Mitch McConnell, Republican of Kentucky and the minority leader, is hyper-focused on the composition of the federal government. judicial power. He even went so far as to prevent Merrick B. Garland, who is now the Attorney General, from getting a hearing on his 2016 Supreme Court nomination by President Barack Obama for nearly a year, a position many believe is well beyond the Senate standards. .

For Democrats, it’s not such a big leap to think that Mr. McConnell would be more than willing to clamp down on the Judiciary Committee to delay confirmation of Mr. Biden’s judicial choices if the opportunity arises.

Mr. McConnell declined to answer questions on the subject, with his staff saying it was hypothetical and that Ms. Feinstein would remain in the Senate and vote. But the general feeling among Republicans is that Mr. McConnell recognizes that it would break with Senate convention to prevent Democrats from filling a committee seat if a member leaves.

Some Democrats also think it’s unlikely the Republicans would go that far.

“I may be naive,” said Senator Richard Blumenthal, Connecticut Democrat and member of the Judiciary Committee, “but I believe they would allow the seat of the Judiciary to be occupied if it were a resignation, rather than of just an absence. I really think that a layoff can lead to a replacement very quickly.”

“I don’t think you can dismiss the idea of ​​firing simply because of the fear that Republicans have been destructive,” he added. “In the long run, it would be self-destructive because they’re going to run into this problem too.”

Senator Chuck Schumer, a New York Democrat and Majority Leader, said he wasn’t sure what the Republicans would do. But given their opposition to Mr Biden’s judicial nominees, he suggested they would most likely make it difficult just to obstruct more confirmations.

“It makes sense that they would pull out all the stops,” he said. “They may not stop it, but they certainly can slow it down.”

Ms. Feinstein, for her part, has repeatedly made it clear that she has no intention of leaving before the end of her term, leaving the whole issue up for debate.

Illinois Senator Richard J. Durbin, a Democrat and chairman of the Judiciary Committee, also said he didn’t know what the Republicans would do. But he does know what he hopes Ms. Feinstein will do when he tries to push judges forward.

“I hope she continues to show up when needed,” he said. “And she’s been really good at that over the past few weeks.”