Dem 51
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GOP 49
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The End of the Line for Feinstein?

At this point, Sen. Dianne Feinstein's (D-CA) cognitive issues are well known. Whether they are debilitating or not depends on exactly who you talk to, though there have now been a number of public misstatements and missteps that suggest "she's no longer up to the job" is likely the correct assessment. Now, on top of this, she's dealing with shingles (and the aftereffects of the disease). Several weeks ago, she said she expected to be back in Washington sometime in early April. Now, however, she is making long-term plans to work from her home in California. And some people in her inner circle wonder if she'll ever be able to return to the Capitol.

Feinstein's absence brings up two obvious problems for the Democrats. One of those is that one less Democratic vote means that Senate Majority Leader Chuck Schumer (D-NY) has virtually no margin for error on floor votes. The second, and very possibly more momentous, problem is that Feinstein is a member of the Senate Judiciary Committee. Without her vote, Republican members of the committee, assuming they remain unified, can block Joe Biden's judicial nominees.

In view of all of this, Schumer and Feinstein have come up with a workaround. What they want to do is seat a "temporary" Democratic member of the Judiciary Committee, until such time as Feinstein is able to return to Washington and resume her duties. Schumer has completed the necessary paperwork, and could bring the matter up for a vote at any time.

That, however, may be the rub. The committee members are set as part of the organizing resolution that is adopted at the start of each session of the U.S. Senate. That resolution is filibusterable, but it does not often happen, since a minority party that filibustered an organizing resolution would also be blocking their own committee assignments and their own party leadership. A change to the resolution is also filibusterable, and when the only question is "Shall we allow [DEMOCRATIC SENATOR X] to replace Dianne Feinstein on the Judiciary Committee for some indeterminate length of time?" then there is considerably less motivation for the Republican minority to play along.

What that means is that, at least at the moment, the ball is in the Republicans' court. Needless to say, they don't much want to facilitate the approval of a bunch of Democratic-appointed judges. On the other hand, there are undoubtedly some Republican members who regard Feinstein as a good friend and/or colleague, and 10 of them might not want to create a situation in which the Senator could be forced to resign, rather than concluding her career on her own terms. Or, if they are thinking in a more realpolitik fashion, if Feinstein feels compelled to resign, then the Democrats will get a new senator from California who will be present for floor votes and who will be able, per Senate rules, to automatically replace Feinstein on the Judiciary Committee. On the other than, if the Republicans play nice and let [DEMOCRATIC SENATOR X] sit on the Committee while Feinstein retains her seat, then at least the GOP makes it harder for the Democrats to prevail on floor votes.

In addition, while there wouldn't be much cost to the Republicans in blocking a temporary Judiciary Committee member, there also wouldn't be a lot of benefit. The Democrats are playing nice right now, but they are supremely unlikely to stand idly by and give up nearly 2 years' worth of judge-confirming time. And that brings us to the next question, which is "What will the Democrats do if the Republicans don't agree to the proposed arrangement?" There are a handful of options that present themselves:

  1. Persuade Feinstein to Resign: This is the most likely outcome. It is entirely understandable that Feinstein is trying to hold on to the bitter end, because once her career in the Senate ends, she goes home to an empty home (her husband died last year) and she's probably not in good enough physical or cognitive condition to do the things that a politician usually does after leaving office, like teach at a university or write books or appear on cable news as a pundit. Truth be told, our guess is that Feinstein would like to die with her boots on, as it were, and to spend zero days as "former Senator Feinstein."

    That said, the Senator is a team player, and she's not likely to pull a variant on the RBG maneuver, allowing the Republicans to claim more control of the judiciary than is their due because a Democrat refused to throw in the towel when circumstances called for it. Some Democrats, like Rep. Ro Khanna (D-CA), are calling openly for Feinstein to resign NOW. Khanna should probably shut his yapper, since Feinstein has earned the right to decide on her own, and since turning this into a pi**ing contest could cause her to dig in her heels. If it becomes absolutely essential for Feinstein to resign, and she's not accepting that reality, Schumer will fly to California for a quiet, private conversation with the Senator. He will not shame Feinstein in public. There may be a lesson in that for an upwardly aspirational politician like Khanna.

  2. Change the Rules: This is the other plausible outcome. The "nuclear option" that will presumably be used to kill the filibuster, whenever that day arrives, can certainly be used to resolve this situation. For example, if the Republicans tried to filibuster a temporary Feinstein replacement, Sen. Bernie Sanders (I-VT) could raise a point of order that, say, temporary committee assignments are not filibusterable. If a majority agrees (and even without Feinstein, the Democrats have 50 votes), then the rules would be changed, just like that. If Schumer doesn't want to go for something quite that assertive, for fear it will come back to bite the Democrats in the rear the next time the Republicans control the Senate, he could go for something more limited, like "members with doctor-verified health concerns may cast votes remotely" or "members with doctor-verified health concerns may appoint a colleague to vote for them by proxy."

  3. Find One Friendly Republican: This is the way it would have been done 20 or 30 years ago. If the Democrats can't find 10 Republicans to break a filibuster, then they could try to find one Republican on the Senate Judiciary Committee who would be willing to vote "present" for as long as Feinstein is absent. That would give the Democrats a de facto majority again.

    The obvious target here is actually Sen. Lindsey Graham (R-SC). He is friends with Feinstein, and has served with her on the Judiciary Committee for many years. He is also on the record as saying that presidents should be allowed to seat their nominees, barring some obvious problem with the candidate. And while Graham is weaselly on many things, he's actually backed up this position with his votes in the past.

  4. Give 'em the Byrd: During the various votes over Obamacare, the Democrats needed the "yea" votes of Robert Byrd, who was then 92 (not far from Feinstein's 89 years of age), and who was in poor health. So, whenever a key moment arrived, Byrd would be ferried from his D.C. residence to the Capitol, would be wheeled into the Senate chamber in a wheelchair, would cast his vote, and then would immediately be taken home. If it comes to it, Feinstein could set up residence in, say, the Willard Hotel (a little over a mile from the Capitol), and could be brought over to the Senate chamber by ambulance, limousine, rickshaw or Uber whenever a vote is taken.

  5. Expel Feinstein: This is supremely unlikely, but we're a full-service website, so we'll cover it anyhow. It is at least possible, if Feinstein digs in, to expel her from the Senate, which would obviously take the decision to resign out of her hands.

    Now let us explain why it is supremely unlikely. First, there is zero precedent for expelling a member due to age or infirmity. If so, Strom Thurmond would have been expelled probably a decade before he left his seat of his own volition. Second, it would be a very nasty way to deal with a distinguished, long-serving member of one's political party. It's hard to imagine 48 Democrats and 3 independents would sign up for it. Third, even if the Democrats were up for it, it takes a two-thirds vote to expel, so 15 Republicans would have to sign up as well. We can't really see a situation where Chuck Schumer couldn't find 10 Republicans to break a filibuster of the "temporary committee member" resolution, but could find 15 Republicans who would vote to expel. After all, getting rid of Feinstein does not offer even a slight glimmer of hope that she would be replaced by a non-Democrat.

What Schumer does, or doesn't do, in the next week should be instructive. Feinstein really should resign, for the various reasons outlined above, and even she is likely aware of it. But nobody wants to leave town with, in effect, their tail between their legs. Look how embarrassing that was for Donald Trump, for example.

If Schumer can arrange for a month or so with zero "Feinstein must go!" talk, then she would be able to step down without it looking like she was forced out. That would obviously be a considerably more dignified way to end things. So, if the Majority Leader does not bring the resolution up for a vote, and if Democrats like Khanna all of a sudden seem to have forgotten about this whole issue, then that's a pretty good sign they are going to give the Senator some space to go out on top. Alternatively, if Schumer brings the resolution to the floor, then it will be clear that Feinstein plans to leave office only when her term expires or when she does. At that point, things could get hairy, but again, there is zero chance that the Democrats don't find a way to keep seating judges. The only question is exactly how many eggs they have to break in order to keep the process going. (Z)

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