Feinstein Judiciary Swap Will Require Republican Agreement

Feinstein Judiciary Swap Will Require Republican Agreement

Democrats want to push more judicial nominees to the floor
Changing committee rosters requires full Senate’s approval

Senate Republicans may refuse to help Democrats replace ill Sen Dianne Feinstein (D-Calif.) on the Judiciary Committee, a move that would extend a freeze on most judicial candidates.

Senate Majority Leader Chuck Schumer (D-N.Y.) last announced he will file a resolution recommending the change next week when the Senate returns from recess. The 89-year-old Democrat has been out for several weeks battling shingles and can not determine when she’ll return from California to the Capitol.

A spokesperson for Senate Minority Leader Mitch McConnell (Ky.), who is due to return on Monday after being away for several weeks himself after a fall, didn’t reply a request for comment on whether the Republican would support replacing Feinstein.

Sen. John Cornyn (R-Texas), a senior Republican who sits on the Judiciary Committee, was likewise tight-lipped when asked if Republicans would stop the move. “Don’t know,” he said.

Her absence has precluded Judiciary Democrats from having a majority on the committee and they have only been able to approve bipartisan nominees. Replacing Feinstein with a Democrat who could actively serve on the committee would give them back their majority.

Under Senate rules, any changes in committee assignments must be authorized by the full chamber and might be susceptible to a filibuster. Traditionally, committee assignments are unanimously authorized by the Senate at the start of a Congress, and there does not appear to be a precedence for their being blocked.

But no GOP senators have commented publicly on the latest initiative. Given the significance the party’s conservative base places on court nominees, it seems plausible that at least one GOP senator may try to stop Schumer’s motion with a filibuster.

“If a senator objects, then Schumer would need to file cloture and cross fingers for 60 votes,” said Sarah Binder, senior fellow in Governance Studies at the Brookings Institution, referring to the votes needed to break a filibuster in a Senate where Democrats now control only 51 seats.

With Feinstein out, Democrats have lacked the votes to advance nominations with only party-line support, including Michael Delaney’s quest to seat on the Court of Appeals for the First Circuit.

Another alternative could be for Democrats to submit a discharge petition to move a nominee out of the Judiciary Committee and onto the floor. Democrats often took that extra step in the past Congress when they required only a simple majority to agree to it. But moving a candidate under discharge rules this Congress would be difficult as it would now be subject to a 60-vote barrier.

Michael Thorning, structural democracy director at the Bipartisan Policy Center, noted that while committee membership changes often take occur mid-Congress they often come when a senator is leaving office. The current scenario is unique as Feinstein expects to return and takes on further importance as her absence has caused a “stalemate” on some nominations.

“That is creating an unusual amount of pressure that does not typically surround the sorts of mid-Congress committee changes,” Thorning said.

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But if the GOP block the Democrats’ request to change the structure of committees, it would likely set a new precedent that may make it tougher to secure bipartisan agreement on committee lineups in the future, especially if Republicans are in the majority.

Support from Democrats
Feinstein’s agreement to temporarily surrender her Judiciary Committee slot comes as some members of her own party are clamoring for her to step down permanently. She is set to retire at the end of her current term in early 2025.

Reps. Ro Khanna (D-Calif.) and Dean Phillips (D-Minn.) pushed her to resign on Wednesday, reflecting progressive activists’ dissatisfaction over her extended absence.

California’s Feinstein Faces Calls to Resign by Fellow Democrats

Feinstein has missed around 60 votes this year, most of which came after she had shingles. She has not voted since Feb. 16.

More Democrats have come to Feinstein’s defense in the hours since. They include Rep. Adam Schiff (D-Calif.), who is vying to replace Feinstein in 2024.

Some have suggested that calls for her resignation reeked of a sexist double-standard.

“When women age or get sick, the men are quick to push them aside,” Rep. Norma Torres (D-Calif.) tweeted. “When men age or get sick, they get a promotion.”

No Democratic senators have called for her to step down.

Sen. Chris Murphy (D-Conn.), speaking on MSNBC on Thursday, pointed out that senators like McConnell have had to miss Senate business for health reasons without facing calls to quit.

“She deserves to have a little bit of time to recover from this injury and illness to be able to get back to the Senate,” he added.

Murphy also questioned the intentions of those asking for Feinstein’s resignation.

Khanna is backing Rep. Barbara Lee (D-Calif.) in the contest to replace Feinstein. California Gov. Gavin Newsom (D) has said he will appoint a Black woman to replace Feinstein if necessary, and Lee is considered as a possible option.

White House Press Secretary Karine Jean-Pierre told reporters on Wednesday that President Joe Biden wished Feinstein “the very best and a speedy recovery” and thanked her for her support of his judicial appointments. The two served together for nearly two decades in the Senate, notably on Judiciary.

“He truly, truly respects and appreciate her commitment to public service,” Jean-Pierre remarked. “I just don’t have anything else to add to that.”

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