Republican senators have laid down clear lines for Democrats when it comes to Senator Dianne Feinstein’s continued absence from the Senate. They will only replace her on the Senate Judiciary Committee, and therefore allow Democrats to continue their work confirming judicial nominees, if she resigns from the upper chamber of Congress altogether.
“Whatever the normal process has been in the past, we’d follow in the future,” Senator Lindsey Graham of South Carolina, the top Republican on the Senate Judiciary Committee, told The Independent last week.
Ms Feinstein has been away from the Senate since March, when she was hospitalised with shingles. At 89, Ms Feinstein is the senior most Democratic senator and the body’s oldest member. But her absence comes at a crucial time for Senate Democrats; as Republicans control the House of Representatives, Democrats have prioritised confirming judicial nominees, who only require Senate support.
The absence also comes as Democrats seek to probe Supreme Court Justice Clarence Thomas for his relationship with Republican megadonor Harlan Crow after a series of stories in ProPublica. Last week, Chief Justice John Roberts rebuffed a request to testify before the Judiciary Committee, which held a hearing on Supreme Court ethics on 2 May.
That creates a predicament for Democrats, who only hold 51 of the Senate’s 100 seats. That means without Ms Feinstein’s presence, they cannot force subpoenas and can only confirm judges with bipartisan support.
Ms Feinstein had requested last month that she be temporarily replaced as she continues to recover. Senate Democrats, led by Senate Majority Leader Chuck Schumer, put forth Senator Ben Cardin of Maryland, who earlier this week announced he would not seek re-election in 2024. But Republicans, led by Minority Leader Mitch McConnell, rebuffed the request.
Senator Chuck Grassley, who sits on the Senate Judiciary Committee, said he would be open to replacing Ms Feinstein on the committee if she would resign altogether.
“The dispute is when they were asking her to give up the seat temporarily, to get a whole bunch of people they can't get out of committee ... when there's plenty of bipartisan support for other judges we ought to be working on when we get out, not playing some fancy game to move something that doesn't have bipartisan support,” he told The Independent.
Like Ms Feintein, Mr Grassley is in his late 80s and Ms Feinstein was previously the ranking member of the Judiciary Committee when he last served as chairman during Donald Trump’s presidency, when Republicans held a Senate majority. Mr Grassley said he took umbrage with calls for Ms Feinstein to resign.
“That's very anti-woman, it's very anti-aging and they should just let her leave her alone,” he said.
Mr Cardin, for his part, seemed resigned to letting Ms Feinstein return.
“Well, not I'm hoping that Senator Feinstein will be returning shortly,” he told The Independent. “At this moment, the discussions are with Senator Schumer, Senator McConnell.”
Senator Thom Tillis of North Carolina, another member of the Senate Judiciary Committee, echoed the sentiment.
“If she retires, we're back to a posture in the past that follows precedent and I think that precedent has been to seat to another member,” he told The Independent.
“Senator Feinstein decides to retire, you come see me and we'll talk about, but I don't think Senator Feinstein is going to do that,” Senator John Kennedy of Louisiana, a Republican member of the Judiciary Committee, told The Independent. “And I think the way that she is being treated is an abomination.”
But Democrats insist that their colleague will return soon. Senator Alex Padilla, California’s junior senator, said Republican attempts to halt a temporary replacement were “disappointing.”
“But clearly the best way forward for Senator Feinstein to return,” he told The Independent. “I know she's eager to visit her doctor to get permission to travel.”
Ms Feinstein announced earlier this year that she would not seek re-election. But she has faced numerous questions about whether her mental accuity has declined in recent years. Ahead of Mr Biden assuming the presidency, she gave up her spot as the top Democrat on the Senate Judiciary Committee, which Senate Majority Whip Dick Durbin assumed.
She also did not assume the role of Senate President Pro Tempore earlier this year, which is usually reserved for the senior most senator of the majority party. Senator Patty Murray of Washington State assumed it instead.
Her continued absence also comes as Senator John Fetterman of Pennsylvania, who was out of the Senate for six weeks to undergo treatment for depression, returned last moth.
Some Democrats like Representative Ro Khanna of California have called for her resignation. Representative Alexandria Ocasio-Cortez of New York also called on Ms Feinstein to resign on the Bluesky app, CNN reported.
“Her refusal to either retire or show up is causing great harm to the judiciary - precisely where repro rights are getting stripped. That failure means now in this precious window Dems can only pass GOP- approved nominees,” she said.
But Senators often hesitate to criticise one of their own, particularly of their own party.
“Let's take it one step at a time,” Democratic Senator Debbie Stabenow of Michigan, who announced her retirement earlier this year, told The Independent. “I know she’s anxious to come back. She’s just waiting for the doctor’s OK.”
Senator Elizabeth Warren of Massachusetts criticised Republican efforts to prevent a temporary replacement.
“It's outrageous that the Republicans are playing politics with a woman who has served this Senate honorably for decades. She's asked for an opportunity to step away from the committee temporarily and let someone else take her place,” she told The Independent. “And the Republicans are saying no, for no reason, other than trying to block the court from going forward in its investigation of the Supreme Court and pass more judges, which is the right of the majority to do.”
But Ms Feinstein’s continued absence is also having an impact far beyond just judicial nominations. On Wednesday, the Senate rolled back the Biden administration’s proposed rule that would have put emission restrictions on trucks. Democratic Senator Joe Manchin of West Virginia joined every Republican, which allowed it to pass because of Ms Feinstein’s absence.
