For weeks, Sen. Dianne Feinstein was hammered over her extended absence because it meant that Democrats didn’t have the votes they needed to advance judges in the Senate Judiciary Committee. That absence — and lingering questions about whether she was mentally fit to do her job — prompted a handful of Democratic lawmakers including Rep. Ro Khanna (D-CA) to call for her resignation.
Feinstein’s return to the Senate in early May has only fueled more scrutiny on whether the 89-year-old remains up to her role, with Khanna reiterating his calls for resignation this week. The debate about what Feinstein should do and what Democrats should do about Feinstein has raised fresh questions about what a senator’s constituents deserve from them, what would happen if her death prompted a sudden vacancy, and the liabilities created by having a Senate in which lawmakers’ median age is 65.
Feinstein’s absence was triggered by a case of shingles, one reportedly worsened by complications. Her long recovery meant she worked remotely for more than two months and didn’t show up to votes. In a divided Congress, one thing Senate Democrats can do unilaterally is advance judges. But the party was unable to approve contentious nominees with Feinstein out, given that she sits on the Judiciary Committee, which Democrats control by one vote.
Votes have resumed now that she’s returned, but an exchange in recent days, along with multiple news reports, reignited growing concerns about Feinstein. In a conversation with reporters at Slate and the Los Angeles Times, Feinstein was asked about her colleagues’ reactions since she’s been back. She appeared to respond by suggesting that she had not been absent.
“I haven’t been gone. I’ve been working,” she told them. Those remarks have bolstered worries established by past reports from the San Francisco Chronicle and Politico, which featured sources speaking to Feinstein’s memory lapses and confusion on certain issues. Another New York Times report this week about medical complications related to shingles that Feinstein has experienced, including one condition that could have cognitive effects, has exacerbated worries that the senator can no longer effectively legislate. If she were unable to work, that would leave Californians without full representation in the Senate, and Democrats would effectively be down one member.
The path forward for Democrats, however, is delicate and uncertain. And pressure from influential lawmakers — like Senate Majority Leader Chuck Schumer — may be one of the only ways for Democrats to persuade her to leave her role.
“Absent Senator Feinstein voluntarily deciding to resign, the Senate’s only formal tool for removing the senator from office would be to vote to expel her — which takes a two-thirds vote of the Senate,” says George Washington University political scientist Sarah Binder. “The key informal tool would be moral persuasion.”
Democrats are facing a conundrum
The growing pressure for Feinstein to step down has put Democrats in a bind.
“Unfortunately, there’s not a lot that Democrats can do right now. In the end, it’s going to be up to Sen. Feinstein to make the decision of what, if anything, she’s going to do,” says Jim Manley, a former staffer to Senate Majority Leader Harry Reid.
Were Feinstein to resign voluntarily, California Gov. Gavin Newsom would appoint a new person to serve out her term until 2025. Newsom has already pledged to nominate a Black woman for the Senate, and many have speculated that it could be Rep. Barbara Lee (D-CA), who has already declared her candidacy for the role.
Manley notes that as Senate leader, Schumer may be one of the few people who could use his sway to speak with Feinstein. As the New York Times reported, however, Feinstein appeared determined to return to the Senate in recent calls the majority leader had with her while she was recovering from shingles. A Schumer spokesperson did not immediately respond to a request for comment regarding potential next steps from Democrats.
Beyond a voluntary resignation, the Senate also has the ability to expel members, though that’s an exceedingly rare maneuver that hasn’t been used since the Civil War. In the past, the Senate has only ever expelled 15 members, 14 of which were related to their decision to join the Confederacy.
A supermajority of senators would also have to vote to take this route, something that’s not likely to happen given the support and deference that many Democrats continue to have for Feinstein, and the unprecedented nature of such an effort.
“She’s got an enormous well of support in the caucus,” says Manley. “Anyone who’s paying attention sees that any attempt to shove her aside is doomed to failure.”
Feinstein is known for being a groundbreaking lawmaker, and was first elected in the 1990s. She’s been a champion for legislation like the Violence Against Women Act, a key voice for gun control, and a longtime defender of abortion rights. Given this history, some lawmakers might be reluctant to push her out. Although multiple lawmakers including Khanna and Rep. Alexandria Ocasio-Cortez (D-NY) have urged her resignation, other Democrats have been more circumspect in their comments.
A Politico report about how former Speaker Nancy Pelosi’s daughter, Nancy Corinne Prowda, is assisting Feinstein in her return to the Senate has also raised questions about a political calculus behind the California Senator’s decision to remain in office. The report quoted an anonymous source the publication described as a “Pelosi family confidant,” who believed the former House speaker supports Feinstein staying in her seat because it could improve the odds of Rep. Adam Schiff’s chances in his Senate run.
Schiff is a longtime Pelosi ally and apprentice. If Feinstein were to step down and Lee were appointed, that would greatly complicate his chances. Lee would already be an incumbent by the time the Senate race comes around in 2024 and likely derive an advantage from that. Feinstein’s and Pelosi’s offices have responded by saying that Prowda is a longtime Feinstein family friend.
[Pelosi and Feinstein’s] “friendship is personal, not political,” Aaron Bennett, a Pelosi spokesperson, told Vox. “Anyone who knows Senator Feinstein knows that her service in the Senate is entirely her own decision, and Speaker Emerita Pelosi would never suggest otherwise,” he added.
The fact that Congress doesn’t have an obvious way of addressing this quandary has come up before and could affect other lawmakers down the line. Feinstein is far from the only lawmaker who has been in this position. In recent years, former Sens. Orrin Hatch and Thad Cochran have also been scrutinized for their fitness to serve as they grew older and battled respective questions about their actions in the role. Prior to that, as FiveThirtyEight pointed out, Sens. Ted Kennedy, Karl Mundt, and Strom Thurmond all faced debates about whether they should resign for similar reasons, with all of them staying in office in the face of those questions.
Any precedent set with Feinstein could have implications for other lawmakers in Congress, a body that skews older, another reason Congress members might be more reserved on the matter. Khanna and Ocasio-Cortez are some of Congress’s younger members, but the situation has clearly put mortality on the minds of many of their colleagues. As Sen. Jon Tester told Politico: “It’s a very hard situation because, let’s face it, when I’m 89 years old, I’ll be long dead. Trust me.”
Update, May 20, 2:50pm ET: This story was originally published on May 19 and has been updated to reflect the characterization of a source in a Politico report.