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Feinstein Appears to Have Gone from Bad to Worse

Slate's Jim Newell is one of the best political reporters working today. And he published a piece yesterday about a brief conversation he and a fellow reporter had with Sen. Dianne Feinstein (D-CA). Here's the key portion:

It was about a minute later that I encountered Feinstein coming off an elevator, sitting in a wheelchair and flanked by staff. It's been hard to find the senator since her return; she's kept her movements mostly to the least-populated passageways and skipped luncheons and non-urgent committee hearings.

I asked her how she was feeling.

"Oh, I'm feeling fine. I have a problem with the leg." A fellow reporter staking out the elevator asked what was wrong with the leg.

"Well, nothing that's anyone concern but mine," she said.

When the fellow reporter asked her what the response from her colleagues had been like since her return, though, the conversation took an odd turn.

"No, I haven't been gone," she said.


"You should follow the—I haven't been gone. I've been working."

When asked whether she meant that she'd been working from home, she turned feisty.

"No, I've been here. I've been voting," she said. "Please. You either know or don't know."

We provide the full text so readers can judge for themselves, but for our part, we agree with Newell's conclusion: "The senator seems to not remember being absent from the Capitol."

As we pointed out in this week's Q&A, no member of Congress has been removed on the basis of incapacity, per se. There are three cases where a member was physically unable to take their oath, and the lack of oath-taking was interpreted as, in effect, a resignation, and the seats in question were declared vacant. This happened with Nick Begich (D-AK) and Hale Boggs (D-LA) in 1973 and Gladys Spellman (D-MD) in 1981. There is also one case of a seat being declared vacant in 1882 because its occupant (George Q. Cannon) was a polygamist.

Obviously, none of these circumstances apply to Feinstein. She took her oath and she's not a polygamist. So, we're in a brave new world right now. If she is really so far gone that she cannot remember having been in California until a week ago, it raises all sorts of questions:

  1. Are the votes she takes right now legal? Could judicial appointments and/or legislation that are successful only because of her vote later be challenged in court if she's found to have been incompetent?

  2. Is she mentally capable of resigning? Can she be made to understand what the issues are here, and persuaded to make the choice that Senate Democrats would like her to make? We spoke to someone whose professional work involves dealing with neurological dysfunction, and they said it is unlikely that someone as far gone as Feinstein appears to be can simultaneously understand a complicated situation like this and be persuaded to make a decision they don't want to make.

  3. Is she legally capable of resigning? If someone is not mentally competent, they cannot sign a will or a contract or any other legal document. So, can they sign a letter of resignation?

  4. Is it time for a conservatorship?

  5. If a conservator is appointed, can that conservator resign on Feinstein's behalf?

There are no clear answers to these questions because they largely haven't come up. And when they did come up, they were not resolved, because workarounds were found. But with Feinstein having nearly 2 years left in her term, and with her incapacity apparently being quite profound, and with her vote absolutely critical to the Democrats' being able to implement their agenda? We may have reached the time when these questions will have to be addressed. (Z)

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