Apr 12, 2023 - Politics & Policy

Senate Dems seek to substitute Feinstein on Judiciary Committee

Sen. Dianne Feinstein, wearing a blue suit jacket, black shirt and pearl necklace, speaks to a throng of reporters outside the Senate chamber.

Sen. Dianne Feinstein. Photo: Kent Nishimura / Los Angeles Times via Getty Images.

Senate Democrats will try to "temporarily" replace Sen. Dianne Feinstein (D-Calif.) on the Senate Judiciary Committee as she recovers from shingles.

Why it matters: Feinstein is facing a sudden burst of calls from lawmakers in her own party to resign as her illness has kept her out of the Senate for weeks, hampering the panel's ability to advance judicial nominations.

Driving the news: When the Senate returns from recess next week, Majority Leader Chuck Schumer (D-N.Y.) will "ask the Senate ... to allow another Democratic Senator to temporarily serve" on the panel, his spokesperson said in a statement Wednesday night.

  • Feinstein had said in a statement earlier that she remains "committed to the job" but asked Schumer to "allow another Democratic senator to temporarily serve [on Judiciary] until I’m able to resume my committee work.”

State of play: The 89-year-old senator, who has already said she plans to retire but will serve out her term through 2024, acknowledged that when she was first diagnosed with shingles, she "expected to return by the end of the March work period."

  • Instead, she said, "my return to Washington has been delayed due to continued complications related to my diagnosis."
  • Her prolonged absence has enraged some Democrats as, in addition to hamstringing the Judiciary Committee, it has led to her missing nearly 60 floor votes in a chamber with a narrow Democratic majority.

Reality check: Swapping Feinstein out for a colleague can't simply be done unilaterally, aides and experts familiar with the process tell Axios.

  • Schumer will need to propose amending the Senate's organizing resolution, which will require consent from all 100 senators.
  • If any senator blocked unanimous consent, the measure would require 60 votes to break a filibuster, meaning at least 10 Republicans would have to support it.

What we're watching: Though it's rare for such votes to be controversial, it's not clear what Republicans will do with the opportunity to deny Democrats the ability to confirm judicial nominees without any GOP support.

  • That could be a heavy lift for Republican senators, a senior GOP aide told Axios, who said it amounted to bailing Democrats out on controversial nominations.

Yes, but: Even if Republicans don't acquiesce to replacing Feinstein, that doesn't stop Democrats from confirming nearly 20 judicial nominees already advanced out of Judiciary, noted Josh Chafetz, a law professor at Georgetown University Law Center.

  • "This all seems a bit premature," he told Axios, "given how many judicial nominees are sitting on the executive calendar. It'll take the Senate a while ... to get through everyone who has already been voted out of committee."
  • Many of the nominees still before the committee could garner enough GOP support to not be affected, according to a source familiar with the process, who said just a handful of party-line appointments are at risk.
Go deeper