WASHINGTON — Alarm bells are ringing among prominent Democrats about Sen. Dianne Feinstein’s long absence from the Senate and the hurdle she poses for confirmation judges.
The 89-year-old California Democrat has not voted in the Senate since February 16 and during her absence announced that she was hospitalized and recovering from shingles. The chamber returns to session next week after a two-week break, but Feinstein’s spokesman, Adam Russell, said they «do not have an update at this time» on when she will return.
He has raised concerns on both ends of Pennsylvania Avenue, with some Democrats concerned that he is stymieing the party in a top priority for President Joe Biden, Senate Majority Leader Chuck Schumer and Judiciary Committee Chairman , Dick Durbin: reshape the judiciary and top the list. 234 judges confirmed by Republicans under Donald Trump.
“Confirmations have been a top priority and a shared success for Schumer and Durbin. But the lack of full Democratic assistance to the judiciary is becoming a bigger and untenable problem for that job every day,” a Democrat involved in the confirmation of the justices, who requested anonymity to speak candid, told NBC News.
The Senate has seen numerous sick leave this year, but Feinstein presents a unique problem for Democrats. He has a swing vote on the Judiciary Committee, which is split between 11 Democrats and 10 Republicans. The panel needs a majority present and voting to send the nominees to the floor; a tied vote is not enough. Durbin has been forced to repeatedly delay committee meetings to approve batches of nominees who lack Republican support.
“This is an untenable position. This is putting all Democrats at a significant disadvantage and the leadership needs to do something to try to prevent it,” said Jim Manley, a former Senate Democratic leadership aide who is now a lobbyist. “They figured out a way to get her to resign as [the top Democrat] in the Judiciary Committee. Now they have to work to get her to resign from the committee in its entirety and/or retire.»
‘She should quit’
Feinstein has announced that he will not seek re-election in 2024, but will hold the position for another 20 months. Some progressives say she should step aside now amid health problems and questions about whether she still has the mental stamina to be an effective senator.
“Dianne Feinstein should no longer be in the Senate. She should quit. And more people should be asking him to step down,” Jon Lovett, former speechwriter for President Barack Obama turned co-host of “Pod Save America.” saying on his podcast on Tuesday.
Lovett, a California resident and a Feinstein constituent, praised the senator’s «incredibly long and important career» but said it «now prevents us from being able to confirm judges.» He added that “what the people around Dianne Feinstein are doing, being a part of this farce that there is not a senator in such an important position, is really wrong.”
Former Democratic Sen. Russ Feingold, president of the liberal-leaning American Constitution Society, said the absences «impair not only the Senate’s ability to confirm judges, but also the ability of the Senate Judiciary Committee to advance nominations.»
Although he did not explicitly ask Feinstein to resign, Feingold said in a statement that if his former colleague «expects to be unable to participate in Judiciary Committee activities for much longer, he could significantly help the situation» by «allowing another senator to take his position on the Committee.
Feinstein’s office declined to comment Wednesday when asked about concerns that he is holding up potential new judges.
‘Not a big deal right now’
Part of the reason for the urgency is that Democrats have few major agenda items that can pass in a divided Congress, with Republicans controlling the House and strangling Biden’s legislative ambitions. But Democrats control 51 Senate seats and can confirm justices to serve for life only with their party’s votes, as long as nearly all of them are present.
They have been confirming judges at breakneck speed, reshaping the courts with a diverse roster of liberal judges in response to Trump, and a Republican-led Senate that has confirmed dozens of young conservatives. Biden, who has obtained 119 judicial confirmations so far, currently leads Trump in judges.
Other Democrats familiar with the confirmation process counter that Feinstein’s absence doesn’t have much immediate impact. They note that 18 federal judicial nominees have already passed through committee and are sitting on the executive calendar ready for full Senate votes, buying time before Democrats are left stranded. And they add that other absences, such as that of Sen. John Fetterman, D-Pa., who has been receiving treatment for clinical depression, would pose obstacles to confirming the nominees on the floor, even if Feinstein were present to pass them on to committee.
“Simply put, it’s not that big of an issue right now,” said a former Senate Democratic aide. «These things take care of themselves and it’s not that the Senate is lagging behind on confirmations.»
Beyond that, these Democrats point out, it’s not so easy to replace a Senate committee member mid-session: It would require revising the organizing resolution that established the panels earlier in the year. That means achieving unanimous consent on the full Senate or 60 votes on the floor, regardless of whether Feinstein voluntarily steps down from the Judiciary Committee.
«It’s hard to imagine Republicans playing ball to make it easier for Democrats to confirm judges,» said the former Senate Democratic aide.