Feinstein Judiciary Swap Will Require Republican Agreement

Senate Republicans may refuse to help Democrats replace ailing Sen Dianne Feinstein (D-Calif.) on the Judiciary Committee, a move that would extend a freeze on most judicial nominees.

Senate Majority Leader Chuck Schumer (D-N.Y.) last night he would offer a resolution proposing the change next week when the Senate returns from recess. The 89-year-old Democrat has been out for several weeks battling shingles and can not say when she’ll return from California to the Capitol.

A spokesman for Senate Minority Leader Mitch McConnell (Ky.), who is expected to return on Monday after being out for several weeks himself after a fall, didn’t return a request for comment on whether the Republican would support replacing Feinstein.

Sen. John Cornyn (R-Texas), a senior Republican who sits on the Judiciary Committee, was likewise tight-lipped when asked if Republicans would block the move. “Don’t know,” he said.

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Sen. Dianne Feinstein (D-Calif.) speaks during a Senate Judiciary Committee hearing.

Photographer: Eric Lee/Bloomberg

Her absence has kept Judiciary Democrats from having a majority on the committee and they have only been able to approve bipartisan nominees. Replacing Feinstein with a Democrat who could actively serve on the committee would give them back their majority.

Under Senate rules, any changes in committee assignments must be approved by the full chamber and could be subject to a filibuster. Traditionally, committee assignments are unanimously approved by the Senate at the start of a Congress, and there does not appear to be a precedent for them being blocked.

But no GOP senators have commented publicly on the latest effort. Given the importance the party’s conservative base places on court picks, it seems possible that at least one GOP senator could try to block Schumer’s move with a filibuster.

“If a senator objects, then Schumer would need to file cloture and cross fingers for 60 votes,” said Sarah Binder, senior fellow in Governance Studies at the Brookings Institution, referring to the votes needed to overcome a filibuster in a chamber where Democrats currently control only 51 seats.

With Feinstein out, Democrats have lacked the votes to advance nominees with only party-line support, including Michael Delaney’s bid to sit on the Court of Appeals for the First Circuit.

Another option could be for Democrats to file a discharge petition to move a nominee out of the Judiciary Committee and onto the floor. Democrats regularly took that extra step in the last Congress when they needed only a simple majority to agree to it. But advancing a nominee under discharge rules this Congress would be harder as it would now be subject to a 60-vote threshold.

Michael Thorning, structural democracy director at the Bipartisan Policy Center, said that while committee membership changes often take place mid-Congress they typically come when a senator is leaving office. The current situation is unique since Feinstein intends to return and takes on added importance as her absence has created a “stalemate” on some nominees.

“That is creating an unusual amount of pressure that does not typically surround the sorts of mid-Congress committee changes,” Thorning said.

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But if the GOP block the Democrats’ proposal to change the makeup of committees, it would likely set a new precedent that may make it harder to reach bipartisan agreement on committee rosters in the future, especially if Republicans are in the majority.

Support from Democrats

Feinstein’s agreement to temporarily relinquish her Judiciary Committee slot comes as some members of her own party are calling for her to step down entirely. She is due to retire at the end of her current term in early 2025.

Reps. Ro Khanna (D-Calif.) and Dean Phillips (D-Minn.) urged her to resign on Wednesday, echoing progressive activists’ consternation with her extended absence.

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Feinstein has missed about 60 votes this year, most of which came after she contracted shingles. She has not voted since Feb. 16.

More Democrats have rallied to Feinstein’s defense in the hours since. They include Rep. Adam Schiff (D-Calif.), who is running to replace Feinstein in 2024.

Some have said that calls for her resignation reeked of a sexist double-standard.

“When women age or get sick, the men are quick to push them aside,” Rep. Norma Torres (D-Calif.) tweeted. “When men age or get sick, they get a promotion.”

No Democratic senators have called for her to step down.

Sen. Chris Murphy (D-Conn.), speaking on MSNBC on Thursday, pointed out male senators like McConnell have had to miss Senate business for health reasons without facing calls to resign.

“She deserves to have a little bit of time to recover from this injury and illness to be able to get back to the Senate,” he added.

Murphy also questioned the motives of those calling for Feinstein’s resignation.

Khanna is backing Rep. Barbara Lee (D-Calif.) in the race to replace Feinstein. California Gov. Gavin Newsom (D) has said he would appoint a Black woman to replace Feinstein if necessary, and Lee is seen as a likely pick.

White House Press Secretary Karine Jean-Pierre told reporters on Wednesday that President Joe Biden wished Feinstein “the very best and a speedy recovery” and thanked her for her support of his judicial nominees. The two served together for nearly two decades in the Senate, including on Judiciary.

“He truly, truly respects and appreciate her commitment to public service,” Jean-Pierre said. “I just don’t have anything else to add to that.”