Feinstein's Prolonged Absence Frustrates Senate Democrats

With a growing backlog of unconfirmed judicial nominees bottled up in the U.S. Senate Judiciary Committee, Sen. Dianne Feinstein issued a statement Wednesday saying she’s asked Majority Leader Chuck Schumer to temporarily name another Democrat to the panel until she is able to return to work.

“When I was first diagnosed with shingles, I expected to return by the end of the March work period. Unfortunately, my return to Washington has been delayed due to continued complications related to my diagnosis,” the statement said.

“I understand that my absence could delay the important work of the Judiciary Committee, so I’ve asked Leader Schumer to ask the Senate to allow another Democratic senator to temporarily serve until I’m able to resume my committee work.”

But pressure on Feinstein to step aside more permanently is mounting.

Bay Area Democrat Ro Khanna (D-Fremont) on Wednesday called on Feinstein to give up the seat she has held for more than 30 years.

Khanna, who has endorsed East Bay U.S. Rep. Barbara Lee in the race to replace Feinstein after she leaves at the end of next year, called on Feinstein to resign to enable the Senate to confirm a backlog of judicial nominations.

“We need to put the country ahead of personal loyalty. While she has had a lifetime of public service, it is obvious she can no longer fulfill her duties,” Khanna said on Twitter.

Khanna noted the recent decision from a Trump-appointed judge to reverse the FDA’s 2000 approval of the drug mifepristone, which is used in medical abortions.

“The ruling by an extremist judge in Texas has made it clear that Democrats must act with speed and urgency to confirm judicial nominees who will protect the right to an abortion. Senator Feinstein is unable to fulfill her duties and for the good of the people, she should resign,” Khanna said.

Even if Schumer appoints another Democrat to take Feinstein’s spot on the Judiciary Committee, it’s by no means certain that would fix the problem with confirming judges. Senate rules require unanimous consent from all senators to change a committee member.

“The problem with that is that any Republican can object to that,” said Khanna. “I anticipate they will object to that. And that is what is my concern. Now, what happens if they object to it and we have the same problem, that we don’t have our judges being confirmed?”

Without unanimous consent to replace Feinstein on the committee, Democrats would need to pursue another track, which would require 60 votes, meaning several Republicans would need to cooperate.

Khanna is often out of lockstep with his party. In 2021, he was the last Democrat in California’s congressional delegation to endorse U.S. Sen. Alex Padilla, who was up for election after being appointed to the job by Gov. Gavin Newsom.

Asked for her thoughts on Feinstein’s status and whether she should step aside, Speaker Emerita Nancy Pelosi pushed back.

“It’s interesting to me, I don’t know what political agendas are at work that are going after Senator Feinstein in that way,” Pelosi said in San Francisco Wednesday. “I’ve never seen them go after a man who was sick in the Senate in that way.”

But while Khanna is the first elected Democrat from California to openly call on Feinstein to step down, he is unlikely to be the last. Her absence from the evenly divided Senate Judiciary Committee blocks Democrats’ ability to move President Joe Biden’s nominations for the federal bench to a confirmation vote of the full Senate floor.

Feinstein’s legacy as a groundbreaking Democrat — she was the first woman to serve on the Senate Judiciary Committee — has kept most Democrats from speaking out. But for more than a year, there have been whispers from her Senate colleagues — mostly unnamed — that the 89-year-old senator has been losing her mental acuity.

“There’s been some deterioration in her mental acuity. Many senators, many of her colleagues, have mentioned that to me,” said congressional scholar Norman Ornstein of the American Enterprise Institute.

“You cannot force her to resign,” he added. “You cannot expel her. But what you can do is move her off the [Judiciary] committee. Replace her with another Democrat to get that necessary one-vote margin to begin to move these confirmations through.”

Feinstein has missed most of the Senate votes this year, which includes more than two dozen for judicial nominations with some of those from California.

“It can be very, very difficult to fill those vacancies,” said Jessica Levinson of Loyola Law School in Los Angeles. “So for the Democrats, I think it makes every sense in the world to take the steps necessary to be able to move these judicial nominations,” especially given that “there’s this looming clock that just is starting to tick faster and faster and faster” as the 2024 election approaches.

“We need to have judges confirmed so that we can recapture some of the balance of the federal judiciary,” Ornstein said. “And right now, Dianne Feinstein, not because of her own choosing, nonetheless, is an obstacle.”

The American Constitution Society (ACS) tracks vacancies in the federal judiciary and the progress of judicial nominations. According to the ACS, there are now 36 pending vacancies awaiting a vote by the Judiciary Committee and 18 awaiting a vote on the Senate floor. Six more nominees are waiting for a hearing by the Judiciary Committee.

“Ongoing absences are impairing not only the Senate’s ability to confirm judges, but the Senate Judiciary Committee’s ability to advance nominations,” said ACS President Russ Feingold, a former U.S. senator from Wisconsin who served with Feinstein on the Judiciary Committee before he was defeated in 2010.

“If Senator Feinstein expects to be unable to participate in Judiciary Committee activities much longer, she could significantly help the situation by taking the necessary steps to enable another senator to take her seat on the Committee.”

While Feinstein is vowing to return to work in Washington, it’s by no means certain that she’ll be able to. If she decides to resign before her term ends, Newsom could choose someone to fill out her term. In 2021, Newsom said he would name a Black woman to the seat if he had the opportunity. At the time, Rep. Barbara Lee’s name was floated as a possible appointment.

With the 2024 Senate campaign now in full swing, however, and Lee one of three prominent Democrats running, along with Congressmembers Adam Schiff and Katie Porter, it’s unlikely Newsom would want to upend voters’ opportunity to choose a successor. But he could name a caretaker who promised not to run for a full six-year term.

The U.S. Senate will reconvene Monday, April 17, after a two-week recess, and if Schumer can move quickly to name another Democrat to the Judiciary Committee, it could name pending nominations as soon as Tuesday.

This story has been updated.