WASHINGTON — When an ailing Senator Dianne Feinstein asked 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 her home in California, Republicans hesitated, blocking the replacement. Feinstein was forced to return to Washington long before many close to her believed she was ready for her party to continue advancing President Joe Biden’s judicial nominees.
Since then, a lingering question looms over the Senate even as Feinstein, 90, refused to consider stepping down before her term ends in 2025: Could Republicans or would they prevent Democrats from replacing her on the committee? if she took a step aside, a departure that would open the door for someone appointed by the state’s Democratic governor to complete their term?
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No definitive answer has emerged – and the proposal may never be tested since Feinstein said it won’t go anywhere. But the question has major implications both for the Senate itself and for California politics.
If Feinstein resigns early, the California governor would appoint a temporary senator who could then have a head start in the hotly contested Democratic race to succeed him in January 2025. Governor Gavin Newsom said he would appoint a black woman, who could work to the disadvantage of other candidates in the race. The idea that Feinstein’s early departure could jeopardize Biden’s judicial nominees was seen as another reason for her to stay.
Still, senators from both parties suggest that is unlikely and that Republicans might cave in and allow a vacancy on the Judiciary Committee, as opposed to a temporary opening, to be filled.
One of the main reasons is that the Senate is an institution strongly bound by precedent – and a deep-rooted instinct to do unto others as they did unto you. Blocking a committee replacement for a legislator who was forced out of the Senate before the end of her term is the type of decision that could come back to haunt Republicans, given that they themselves have older members who could find in such circumstances.
Democrats would then have the opportunity to deny someone a seat, and they would no doubt take advantage of this if they saw it as justified retaliation. As in other circumstances, the tit-for-tat could quickly escalate into a costly brawl for both parties.
Members on both sides of the aisle say the difference between temporarily stepping down from a seat and replacing an outgoing member is significant, and they believe Democrats would be allowed to retain their majority on the influential panel.
“I can’t imagine that happening,” Sen. John Cornyn of Texas, a senior Republican member of the Judiciary Committee, said of the prospect of blocking Democrats from sitting a new member on the panel if Feinstein was leaving. “I think that would be unsustainable.”
He added that speculation about it “has to do with California politics and who wants to run to replace her.”
In an interview this year on CNN, Sen. Lindsey Graham of South Carolina, the committee’s top Republican who formally opposed a temporary replacement for Feinstein, also said he “would be in the camp to replace the person if Feinstein or another senator opened a window by giving up a seat early.
Not everyone is convinced. Hillary Rodham Clinton, herself a former Senate member, helped reignite the issue last month when she said in an interview with Time magazine that she believed Republicans would block a replacement to thwart pressure on the justices.
“If we want the justices confirmed, which is one of the most important ongoing obligations we have, then we can’t afford to leave his seat vacant,” Clinton said.
And Sen. Sheldon Whitehouse of Rhode Island, a senior Democrat on the committee, fanned the flames again this month, saying on Twitter: “The fact is simple: If Sen. Feinstein resigns, Mitch McConnell decides whether the Democrats have a judicial majority in the Senate. .”
The suspicion that Republicans might prevent a replacement is driven not only by the fact that they have blocked a temporary replacement, but also by the reality that Sen. Mitch McConnell, R-Ky., the Minority Leader, is hyper-focused on the composition of the federal judiciary. He went so far as to block Merrick Garland, who is now attorney general, from getting a hearing on his 2016 Supreme Court nomination by President Barack Obama for nearly a year, a stance many saw as well in hand. outside of Senate standards.
For Democrats, it’s not too hard to think that McConnell would be more than willing to tie up the Judiciary Committee to slow confirmation of Biden’s judicial picks if the opportunity arose.
McConnell declined to answer questions on the matter, with his staff saying it was speculation and that Feinstein was staying in the Senate and voting. But the general sentiment among Republicans is that McConnell acknowledges it would break with Senate convention to prevent Democrats from filling a committee seat if a member leaves.
Some Democrats also think Republicans are unlikely to go that far.
“I may be naive,” said Sen. Richard Blumenthal, D-Conn., Judiciary Committee member, “but I believe they would allow the bench seat to be filled if it was a a resignation rather than a simple absence. I really think that a resignation could lead to a replacement very quickly.
“I don’t think you can dismiss the idea of a resignation just because of the fear that Republicans have been destructive,” he added. “In the long run it would be self-defeating because they’re going to run into that problem as well.”
Sen. Chuck Schumer, DN.Y., the majority leader, said he wasn’t sure what Republicans would do. But given their opposition to Biden’s judicial nominees, he suggested they would most likely make it difficult just to prevent more confirmations.
“It makes sense that they’re going all out,” he said. “They might not stop it, but they sure could slow it down.”
For her part, Feinstein has made it clear on several occasions that she has no intention of leaving until her term ends, rendering the whole issue moot.
Sen. Dick Durbin, D-Ill., chairman of the Judiciary Committee, also said he didn’t know what Republicans would do. But he knows what he hopes Feinstein will do as he tries to keep the judges moving forward.
“I hope she continues to show up when needed,” he said. “And she’s been really good at it the last few weeks.”
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