Longstanding questions about Sen. Dianne Feinstein’s age and whether she’s able to continue serving effectively in the Senate exploded this month after multiple news stories documented how her extended absence is holding up judicial nominations in the Senate.
Feinstein, who is 89, is presently on leave from the Senate due to a case of shingles. She’s been away from the Senate since early March, and it’s not yet clear when she’ll be back. In a statement shared last week, Feinstein noted that her return has been delayed due to “complications related to my diagnosis.” In the interim, she’s said she’ll work remotely and have another Democrat serve in her stead on the Senate Judiciary Committee.
That plan, however, hit a major snag on Tuesday as Senate Republicans made clear that they wouldn’t help Democrats add a temporary replacement to the panel.
In order to fill Feinstein’s Judiciary seat while she’s out, Democrats need to have unanimous consent — the agreement of all senators — or, failing that, 60 votes in support. With Feinstein out, that means Democrats would need the backing of every Democrat and independent in the Senate, plus at least 10 Republicans.
Senate Minority Leader Mitch McConnell announced Tuesday that Republicans are not inclined to provide those votes. “Senate Republicans will not take part in sidelining a temporary absent colleague off the committee just so Democrats can force through their very worst nominees,” he said in a floor speech.
McConnell’s announcement adds to the pressure on Feinstein, given how big of a priority judges are for Democrats this term. With too few votes to overcome the filibuster and a Republican House majority, filling the judiciary with their nominees is one of the few things Democrats could feasibly accomplish. But due to Feinstein’s ongoing absence, Democrats haven’t had the majority they need to continue approving judges on the Judiciary Committee, prompting concerns about a backlog as President Joe Biden tries to counter GOP stacking of the courts.
The latest dustup follows months of concerns dogging Feinstein because of her age and past reports, including the San Francisco Chronicle, that raised questions about whether she was mentally fit for the role.
Now, the hubbub about her absence has spurred two House members — Reps. Ro Khanna and Dean Phillips — to explicitly call for her resignation, while reigniting conversations about lawmakers’ ages and how age affects their ability to serve. At this time, Feinstein has not indicated that she plans to step down and said she intends to return upon her recovery.
Judges are at the center of the latest controversy
The latest controversy facing Feinstein was prompted by Democrats’ backlog of judicial nominees. Currently, there are 12 nominees who’ve had confirmation hearings who are still awaiting votes in the Judiciary Committee.
Because of how narrow Democrats’ majority is in the Senate, they only have a one-person margin in the Judiciary Committee, outnumbering Republicans 11 to 10. With Feinstein’s absence, the panel is deadlocked, making it tougher to approve nominees. Unlike last term, when Democrats could use a discharge petition to advance nominees to the floor in the case of a tie, the Senate’s rules this term make that procedure much harder.
That essentially means any tie vote in committee is a failed vote on a nominee, and that Democrats can’t advance their picks in Feinstein’s absence unless they get GOP support. This dynamic is a big driver of the frustrations toward Feinstein, since her absence means Democratic nominees probably won’t be able to get floor votes while she’s gone.
Floor votes are also risky for Democrats. Even before Feinstein’s absence, the party had slim margins. And though the return of Sen. John Fetterman (D-PA), who had taken time away to receive treatment for clinical depression, brings the party back to 50 votes, they’ll have no room to spare for other potential absences.
“Of course it does,” Sen. Dick Durbin (D-IL) told CNN when asked if Feinstein’s absence could have an impact on slowing confirmations. This week, Senate Majority Leader Chuck Schumer is expected to put forth a resolution to temporarily fill Feinstein’s seat on the Judiciary Committee, despite GOP opposition to the plan.
Multiple Republicans — including Sens. John Cornyn (R-TX) and Mitt Romney (R-UT) — have signaled that they wouldn’t support such a maneuver. Democrats haven’t yet announced who Feinstein’s replacement could be.
Beyond Feinstein’s absence, advocates have worried that blue slips, which enable senators to block district court nominees from their home states if they don’t support them, could cause delays. If a senator doesn’t return a blue slip for a judicial nominee, that indicates their opposition and kills the consideration of that person for a district court opening.
Progressive groups such as Demand Justice have called for lawmakers to do away with this policy since it could allow Republicans to block nominees for the sake of keeping those vacancies open for more conservative picks later on. Recently, Sen. Cindy Hyde-Smith’s (R-MS) decision not to return a blue slip for Scott Colom, a nominee for the Northern District of Mississippi, has added to the pressure on Democrats to advance the judges they can while they still hold power.
Durbin has warned Republicans not to abuse the blue slips, though he’s thus far been reluctant to do away with them entirely. Spokesperson Emily Hampsten told CNN that “he’ll be assessing and will respond more fully” in the coming days.
Some Democrats are calling for Feinstein’s resignation
The snafu over judges only follows a buildup of months of questions that have emerged about Feinstein’s ability to serve in this position. In April 2022, the San Francisco Chronicle reported that multiple Democratic senators and former Feinstein staffers were concerned she was no longer able to fulfill her duties, citing instances of memory lapses and times when she didn’t seem to recognize colleagues. Politico reported in 2020 on senators’ concerns about Feinstein’s ability to lead the Judiciary Committee, a post she’s since stepped down from.
Feinstein has previously defended her ability to perform her job and said she’s continuing to deliver for the people of California.
The emergence of this latest issue has prompted some lawmakers including Khanna to call for her resignation for the first time. “While she has had a lifetime of public service, it is obvious she can no longer fulfill her duties,” Khanna said in a tweet. Since the California lawmaker’s tweet, other House Democrats, including New York Reps. Jamaal Bowman and Alexandria Ocasio-Cortez, have said Feinstein should seriously consider resigning.
If Feinstein resigns, California Gov. Gavin Newsom would be in charge of appointing a replacement, much like he did when Vice President Kamala Harris previously left her Senate seat. There may be some political incentive for such calls: Newsom has pledged to appoint a Black woman if Feinstein steps down before the end of her term, and Khanna is backing a prominent contender, Rep. Barbara Lee (D-CA), who has already declared her candidacy for the position.
The recent pressure on Feinstein also highlights the ageism and the additional scrutiny that older lawmakers have experienced. Former House Speaker Nancy Pelosi, and others, have noted that women, in particular, are treated differently in this respect. “When women age or get sick, the men are quick to push them aside. When men age or get sick, they get a promotion,” Rep. Norma Torres (D-CA) tweeted.
Other lawmakers have previously faced questions about their age, though the attention on Feinstein has been especially fierce, a dynamic that could be indicative of this double standard. Many Iowa voters were concerned about age during the midterms, when 89-year-old Chuck Grassley was running for reelection. Prior to his retirement, the late Sen. Orrin Hatch, who was 84 at the time, also dealt with scrutiny about whether he could handle the job. President Joe Biden, who is 80, has repeatedly faced questions about his mental acuity, mostly from Republicans.
As part of her presidential campaign, GOP candidate and former South Carolina Gov. Nikki Haley has called for competency tests for politicians over 75, a seeming dig at Biden and Trump, who is 76.
Clarification, April 13, 2 pm ET: This story was originally published on April 13 and has been updated to clarify the current process for discharge petitions.
Update, April 18, 5:20 pm ET: This story was originally published on April 13 and has been updated to include Republican statements about a temporary replacement for Feinstein.