Senate Democrats stuck with Feinstein dilemma after Judiciary Committee swap fails
David Sivak
Video Embed
Democrats are in a bind over how to handle the absence of Sen. Dianne Feinstein (D-CA) after Republicans denied an attempt to replace her temporarily on the Judiciary Committee.
Feinstein has been recovering from a case of shingles at home in California for more than six weeks, leaving the panel deadlocked without the 89-year-old’s presence.
GRAHAM BLOCKS SCHUMER PUSH TO REPLACE FEINSTEIN ON JUDICIARY
Although Senate Democrats have been giving Feinstein the space and time to recover, progressives have grown increasingly restless as the absence slows Majority Leader Chuck Schumer’s (D-NY) ability to advance President Joe Biden’s judicial nominees through the committee.
The party’s left flank, which has long bristled at Feinstein’s penchant for bipartisan collegiality, has called for her to resign, a chorus that reached fever pitch last week when two House Democrats, Reps. Ro Khanna (CA) and Dean Phillips (MN), became the first lawmakers to join that call.
Within hours, Feinstein released a statement reiterating her intent to return to Washington as soon as she was able. But she also proposed something of an escape hatch — a solution that would buy her time to recover without holding up the appointment of Biden’s judges.
She requested that Schumer swap her out temporarily on the Judiciary Committee, a proposal the majority leader agreed to put before the Senate.
Schumer framed the ask as a matter of “senatorial collegiality” and the “right” and “fair” thing to do. However, Republicans quickly made clear that, despite their reverence for Feinstein as a female trailblazer in the Senate, there was no appetite to go along with a move that would help Democrats appoint liberal judges.
As lawmakers returned from the two-week Easter recess on Monday, Republicans uniformly announced their opposition to the request. Even centrists such as Sen. Susan Collins (R-ME) rejected the Democrats’ bid as an attempt to sideline Feinstein.
“Sen. Feinstein is my friend, and she has been an extraordinary senator. During the past two years, there clearly has been a concerted campaign to force her to leave the Judiciary Committee,” she said. “That’s what’s going on here, and I will have no part of that.”
Sen. Lindsey Graham (R-SC), known as a bipartisan vote on the Judiciary Committee, killed any hope of the plan coming to pass on Tuesday, when Schumer took to the Senate floor to ask that Sen. Ben Cardin (D-MD) replace Feinstein.
Graham objected to the unanimous consent request, leaving Democrats at square one.
Democrats have few good options as they weigh their next steps. Schumer could force a full vote by the Senate, but without 10 Republicans on board to avoid a filibuster, that motion is all but doomed.
The party could just decide to make the best of a bad situation and live without Feinstein on Judiciary — there are still a number of judges the panel could advance who would win bipartisan support.
But without a timeline for Feinstein’s return, patience will inevitably wear thin as her absence takes a greater toll. Schumer had been confirming Biden’s judges at what amounted to a break-neck pace for the Senate, and having a functioning Judiciary Committee is essential if the majority leader wants to rival the number of judges appointed under former President Donald Trump.
Progressives are agitating for Democrats to play hardball over the GOP opposition. Brian Fallon, the executive director of judicial activist group Demand Justice, wants Senate Democrats to threaten to end the tradition of blue slips, which allows the home state senators of a judge to hold veto power over their nomination, if Republicans won’t acquiesce.
“Just raising the specter of it might cause the Republicans to think twice,” Fallon told the New York Times. “Republicans didn’t even contemplate trying to meet the Democrats halfway because they don’t fear any reprisal.”
Although Democrats are considering ending the practice, it’s not clear there’s an appetite for retribution. Asked about the prospect, Sen. John Kennedy (LA), a Republican member of Judiciary, confidently dismissed it.
“No, no. That’s all a bluff,” he told the Washington Examiner.
“The Democrats want blue slips as much as the Republicans do,” he added. “Without the blue slip, we have zero power vis-a-vis the White House. And the United States Congress has given away so much of its power to the executive branch that with respect to the blue slip, I think most, if not all, Republicans and, frankly, most, if not all, Democrats support the blue slip.”
Two Judiciary Committee Democrats the Washington Examiner spoke to on Tuesday said the blue slip conversation is premature, while a third, Sen. Sheldon Whitehouse (D-RI), said the decision is up to Chairman Dick Durbin (D-IL). Sen. Cory Booker (D-NJ) said he believes the tradition should stay in place.
“We have a challenging dynamic on the committee where we’re seriously debating the future of the blue slip and trying to get back to regularly confirming President Biden’s nominees,” Sen. Chris Coons (D-DE) said. “Sen. Feinstein has communicated through staff that she will be returning soon. It is my hope that we will soon be back to full committee membership and be able to resume consideration of nominees. So we’ll see. I think we’ll have to cross that bridge when we get there.”
For now, Feinstein has been shown deference by Washington Democrats all the way up to Biden. Ex-House Speaker Nancy Pelosi (D-CA) has decried the calls for her resignation as sexist.
Yet if Feinstein’s absence drags on much longer, Democrats have begun to make clear the deep well of support she has could run out.
“If this goes on month after month after month, then she’s gonna have to make a decision with her family and her friends about what her future holds because this isn’t just about California. It’s also about the nation,” Sen. Amy Klobuchar (D-MN) told ABC on Sunday. “So it’s going to become an issue as the months go by. But I’m taking her at her word that she’s going to return.”
Republicans have speculated the move by Schumer is designed to show Feinstein that she has to step down. Yet it remains to be seen whether more Democrats will publicly urge her to resign now that Schumer’s workaround failed.
“I think what the Democrats are trying to do to Dianne Feinstein is terrible — I think what they’re trying to do is force her to resign,” Sen. Josh Hawley (R-MO) told reporters on Tuesday. “I think that this is a maneuver designed to fail. This has never been done — this kind of swapping in one member for another. I think they know it’ll fail. And then they’ll flip around and say to her, ‘See? You have to resign,’ and it’s terrible, but it’s not my call.”
CLICK HERE TO READ MORE FROM THE WASHINGTON EXAMINER
Khanna, who is backing Rep. Barbara Lee (D-CA) in the Senate race to replace Feinstein in 2024, said the plan to swap Feinstein out managed to “stop the bleeding and halt the growing chorus for her to resign.” But he said it’s now up to Feinstein to announce her next move.
“It worked for a few days but didn’t solve the problem as many of us had warned,” he told NBC News. “The ball is now back in Sen. Feinstein’s court to provide a specific timeline of when she can cast votes on Judiciary to confirm President Biden’s judges.”