Sen. Dianne Feinstein (D-CA) is seen in the US Capitol subway on February 15, 2023. | Tom Williams/CQ-Roll Call, Inc/Getty Images
Why some Democrats want Feinstein to resign immediately.
Longstanding questions about Sen. Dianne Feinstein’s age and whether she’s able to continue serving effectively in the Senate exploded this week after multiple news stories documented how her extended absence is holding up judicial nominations in the Senate.
Feinstein, who is 89, is presently on leave from the Senate due to a case of shingles. She’s been away from the Senate since early March, and it’s not yet clear when she’ll be back. In a statement shared Wednesday evening, Feinstein noted that her return has been delayed due to “complications related to my diagnosis.” In the interim, she’s said she’ll work remotely and have another Democrat serve in her stead on the Senate Judiciary Committee.
Judges are a huge priority for Democrats this term, particularly since the Senate can confirm them unilaterally without needing the support of a Republican House. It’s also a vital long-term issue for the party, given how former President Donald Trump stacked the courts with conservative judges, and Democrats are now trying to keep up a similar pace. Feinstein’s absence has meant the Senate Judiciary Committee doesn’t have the majority it needs to quickly advance judges.
The growing concern about judicial appointments prompted some Democrats — including Reps. Ro Khanna (D-CA) and Dean Phillips (D-MN) — to call for Feinstein not just to step aside but to resign now. Feinstein has not indicated that she plans to step down at this time and said she intends to return upon her recovery.
The latest dustup follows months of concerns dogging Feinstein because of her age and past reports from outlets, including the San Francisco Chronicle, that raised questions about whether she was mentally fit for the role. Now, the hubbub about Feinstein has reignited conversations about lawmakers’ ages and how it affects their ability to serve, as well as discussions of sexism, with some Democrats — including former House Speaker Nancy Pelosi — arguing that men don’t face the same pressures to leave such positions as they get older.
Judges are at the center of the latest controversy
The latest controversy facing Feinstein was prompted by Democrats’ backlog of judicial nominees. There are 14 nominees who’ve had confirmation hearings who are still awaiting votes in the Judiciary Committee.
Because of how narrow Democrats’ majority is in the Senate, they only have a one-person margin in the Judiciary Committee, outnumbering Republicans 11 to 10. With Feinstein’s absence, the panel is deadlocked, making it tougher to approve nominees. There’s a special procedure that can be used to advance judges if there’s a tie in committee, though it eats up valuable, and increasingly limited, floor time. Floor votes are also risky for Democrats. Even before Feinstein’s absence, the party had slim margins on the floor. Soon, they’ll once again have 50 votes needed to approve judges with the upcoming return of Sen. John Fetterman (D-PA), who had taken time away to receive treatment for clinical depression.
“Of course it does,” Sen. Dick Durbin (D-IL) told CNN when asked if Feinstein’s absence could have an impact on slowing confirmations. Senate Majority Leader Chuck Schumer said Wednesday that he intends to temporarily fill her seat on the Judiciary Committee.
To do so, Schumer needs either unanimous consent (the agreement of all present senators) or 60 votes, which would require 10 Republicans to sign on. At this point, no Republicans have expressed their opposition to replacing Feinstein, though it’s possible some GOP members could try to stymie the move in a bid to block judges from getting confirmed. Democrats haven’t yet announced who Feinstein’s replacement could be.
Beyond Feinstein’s absence, advocates have worried blue slips, which enable senators to block district court nominees from their home states if they don’t support them, could cause delays. If a senator doesn’t return a blue slip for a judicial nominee, that indicates their opposition and kills the consideration of that person for a district court opening.
Progressive groups such as Demand Justice have called for lawmakers to do away with this policy since it could allow Republicans to just block nominees for the sake of keeping those vacancies open for more conservative picks later on. Recently, Sen. Cindy Hyde-Smith’s (R-MS) decision not to return a blue slip for Scott Colom, a nominee for the Northern District of Mississippi, has added to the pressure on Democrats to advance the judges they can while they still hold power.
Durbin has warned Republicans not to abuse the blue slips, though he’s thus far been reluctant to do away with them entirely. Spokesperson Emily Hampsten told CNN that “he’ll be assessing and will respond more fully” in the coming days.
Some Democrats are calling for Feinstein’s resignation
The snafu over judges only follows a buildup of months of questions that have emerged about Feinstein’s ability to serve in this position. In April 2022, the San Francisco Chronicle reported that multiple Democratic senators and former Feinstein staffers were concerned she was no longer able to fulfill her duties, citing instances of memory lapses and times when she didn’t seem to recognize colleagues. Politico reported in 2020 on senators’ concerns about Feinstein’s ability to lead the Judiciary Committee, a post she’s since stepped down from.
Feinstein has previously defended her ability to perform her job and said she’s continuing to deliver for the people of California.
The emergence of this latest issue has prompted some lawmakers including Khanna to call for her resignation for the first time. “While she has had a lifetime of public service, it is obvious she can no longer fulfill her duties,” Khanna said in a tweet.
If Feinstein resigns, California Gov. Gavin Newsom would be in charge of appointing a replacement, much like he did when Vice President Kamala Harris previously left her Senate seat. There may be some political incentive for such calls: Newsom has pledged to appoint a Black woman if Feinstein steps down before the end of her term, and Khanna is backing a prominent contender, Rep. Barbara Lee (D-CA), who has already declared her candidacy for the position.
The recent pressure on Feinstein also highlights the ageism and the additional scrutiny that older lawmakers have experienced. Former House Speaker Nancy Pelosi, and others, have noted that women, in particular, are treated differently in this respect. “When women age or get sick, the men are quick to push them aside. When men age or get sick, they get a promotion,” Rep. Norma Torres (D-CA) tweeted.
Other lawmakers have previously faced questions about their age, though the attention on Feinstein has been especially fierce, a dynamic that could be indicative of this double standard. Many Iowa voters were concerned about age during the midterms, when 89-year-old Chuck Grassley was running for reelection. Prior to his retirement, the late Sen. Orrin Hatch, who was 84 at the time, also dealt with scrutiny about whether he could handle the job. President Joe Biden, who is 80, has repeatedly faced questions about his mental acuity, mostly from Republicans.
As part of her presidential campaign, GOP candidate and former South Carolina Gov. Nikki Haley has called for competency tests for politicians over 75, a seeming dig at Biden and Trump, who is 76.