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DiFi Dilemma

Democrats Have a Quick Fix for Their Dianne Feinstein Headache. There’s Just One Problem.

The ailing senator would like to be replaced temporarily on the Senate Judiciary Committee, but that’s easier said than done.

Kent Nishimura/Getty Images
California Senator Dianne Feinstein

Senator Dianne Feinstein, who has remained in California for months as she recuperates from shingles, is hoping that her absence from the Senate Judiciary Committee can be quickly remedied. In a statement issued Wednesday, Feinstein said that she understood “her absence could delay” that body’s “important work,” asking Senate Majority Leader Chuck Schumer to “allow another Democratic senator to temporarily serve until I’m able to resume my committee work.” But her request may not be that simple to fulfill: The process of replacing Feinstein with a temporary substitute could run into some high hurdles if Senate Republicans express opposition.

Feinstein has recently been plagued by accounts of declining health and decreased mental acuity. In February, she announced that she would not run for reelection but would serve the rest of her term. But Feinstein has missed nearly 60 votes since her shingles diagnosis that same month, narrowing the already tight 51-seat majority that Democrats hold in the Senate. Her absence also overlapped with that of Senator John Fetterman, who received a weeks-long treatment for depression.

But while Fetterman will return to the Senate next week, Feinstein’s absence appears indefinite. In her statement, she notes that she had expected to return to the Senate by the end of March, but her “return to Washington has been delayed due to continued complications related to my diagnosis.” She added that she hoped to return to the Senate “as soon as possible” and said that she remains “committed to the job.”

The senator’s announcement came after Politico published a report on Wednesday citing unnamed Democratic sources concerned she will not return to Washington at all. Representative Ro Khanna, a fellow Democrat from California, tweeted on Wednesday that Feinstein should resign. Khanna has endorsed Representative Barbara Lee in her Senate bid; Governor Gavin Newsom has said he would appoint a Black woman to Feinstein’s seat should she resign, and Lee’s supporters hope that she would be the one tapped.

Senate Majority Leader Chuck Schumer said in a statement Wednesday that he would “ask the Senate next week to allow another Democratic Senator to temporarily serve on the Judiciary Committee.” A spokesperson for Senator Dick Durbin, the chair of the Judiciary Committee, also said in a statement that he “looks forward to continuing the important work of moving judicial nominees through the Committee when the Senate reconvenes.”

But naming a temporary replacement for Feinstein may be easier said than done. Generally, committee assignments are approved through unanimous consent, meaning that all 100 senators must agree. If even one senator voices opposition, the assignment will require support from 60 senators, meaning at least 10 Republicans would need to support the change.

It’s not unusual for committee assignments to change at this point in a Congress: According to Michael Thorning, the director of structural democracy at the Bipartisan Policy Center, only three of the last 15 Congresses over the past 30 years did not have some kind of assignment change in the middle of a session. But this is typically due to a senator’s resignation or death, with a new successor appointed or elected to replace them.

“The primary complication is the unprecedented nature of a temporary replacement. The Senate would be setting a new precedent that has not been available to extended-absent senators in the past,” Thorning said in an email, highlighting the absences of senators like Fetterman and former Senators Mark Kirk and Tim Johnson, who both experienced serious medical issues while in office.

It’s far from clear that a sufficient number of Republicans would agree to such a move. From an ideological standpoint, GOP senators could see this request from Democrats as asking Republicans for assistance in passing party-line nominations of judges whom they oppose. It could also require them to concede leverage in a powerful committee: The Judiciary Committee is currently divided between 11 Democrats and 10 Republicans. With Feinstein’s absence, the committee is functionally evenly split; if the committee deadlocks on a nomination, then it can’t be reported to the floor. “I can’t consider nominees in these circumstances because a tie vote is a losing vote in committee,” Durbin told CNN earlier this month.

Blocking the temporary replacement would politicize the committee-assignment process in a way that could later backfire for a future Republican Senate majority. The assignment process has become more polarized in recent years, with the majority party removing or blocking representatives from committees. The Senate is traditionally more staid than the House, but recent dogfights over nominations have demonstrated that if the upper chamber was ever the “cooling saucer” of Congress’s tempestuous tea, it may no longer serve that function.

“Both parties have exhibited in the last decade a willingness to forgo Senate norms and even change Senate precedents on party-line votes to ensure their party’s judicial nominees are speedily confirmed,” Thorning said, referring to the changing of filibuster rules to allow judicial nominees, including Supreme Court appointments, to be approved with a simple majority.

Molly Reynolds, senior fellow of governance studies at the Brookings Institute, noted that the special procedures which allowed items of business to advance to the Senate floor under the evenly divided Senate of 2021 and 2022 were no longer in place with the new Congress. But Democrats also need all members present so they can shepherd through those nominations that will be uniformly opposed by Republicans.

“There are currently 19 judicial nominees already reported out of committee and awaiting floor action, so the Judiciary Committee is not the only place where nominees are getting stuck at this moment,” Reynolds said.

Feinstein’s absence is particularly significant as Biden and Democrats seek to counteract the work of former President Donald Trump and the then-Republican majority in the Senate in reshaping the federal judicial bench. As a January Brookings report noted, Trump’s term in office “enabled Republican appointees to occupy a majority of the statutory judgeships,” which Biden likely cannot reverse by 2025. Trump also saw three Supreme Court justices confirmed during his tenure. A ruling by a Trump-appointed judge on abortion medication last week demonstrates the importance of the federal bench in determining policy; that case may be headed to the Supreme Court.

Feinstein’s absence may also complicate the packed schedule for the Judiciary Committee in the coming weeks: Durbin has promised a hearing on the Supreme Court’s ruling overturning Roe v. Wade and on Justice Clarence Thomas’s acceptance of gifts from a conservative billionaire as revealed in a ProPublica report.

The Judiciary Committee isn’t the only committee on which Feinstein serves: She is a member of the Intelligence, Appropriations, and Rules Committees, where her absence will also be felt. There is also the question of whether her temporary replacement on the Judiciary Committee, if seated, will give up his or her other committee posts.

“Would this member have to give up other current committee assignments in order to comply with caucus and chamber restrictions on each member’s committee assignments?” Thorning asked. “It seems unlikely members would be willing to do so given the uncertainty surrounding Senator Feinstein’s return.”