“The question is, how long until she goes back? So if it’s three months, I don’t know, that becomes a really difficult question. If it’s a couple of weeks? I’m fine with it,” said Sen. John Hickenlooper (D-Colo.). “I’m not going to pressure her one way or the other. But I think, you know, if it’s going to be months and months? My guess is that … she will be her own harshest critic.”
Sen. Lindsey Graham (R-S.C.) blocked Senate Majority Leader Chuck Schumer’s Tuesday afternoon request for unanimous consent to add Sen. Ben Cardin (D-Md.) temporarily to the Judiciary Committee. In theory, that could tee up a floor vote on the matter, but Democrats don’t have the 10 GOP votes they’d need to move forward.
“This is about a handful of judges that you can’t get the votes for,” Graham said.
Indeed, Republicans made clear Monday that they would reject Feinstein’s request to temporarily step down from the Judiciary panel. Chair Dick Durbin (D-Ill.) has had to repeatedly delay committee votes on judges since Feinstein’s absence began in late February.
Now Democrats are largely out of options. And Schumer said little Tuesday, declining to get into any resignation talk whatsoever. Feinstein’s future did not come up at Democrats’ Tuesday lunch meeting, according to multiple senators.
“She and I are both very hopeful she will return very soon,” said Schumer, who spoke to Feinstein on Friday.
Unless Feinstein returns or resigns, all Democrats can do is wait. Feinstein’s term ends at the end of 2024, and her office on Tuesday pointed to last week’s statement in which she said she expects to come back.
It’s not the first time Democrats have wrestled with tough questions about the twilight of the 89-year-old Feinstein’s career. She faced pressure to step down as the top Democrat on the Judiciary Committee during the presidency of Donald Trump and eventually acceded to those demands. She also passed on the role of Senate pro tempore, which as the most senior senator of the majority party would put her in the line of presidential succession.
Now, Democrats expect her to make a difficult call about her own health as it threatens to overshadow her rich legacy in politics. Sen. Patty Murray (D-Wash.), who is now the pro tempore and was elected the same year as Feinstein, said she has “complete confidence that [Feinstein] will make the right decision for her state and her country.”
“The next step is up to Sen. Feinstein. I hope that means she’ll be returning to us soon,” Durbin said. As to whether she should resign, Durbin added: “This is her decision. She’s had a remarkable career in the Senate. I’m not going to make that decision or even suggest it.”
Publicly, the White House lined up with other Democrats, saying Feinstein deserves a chance to recover and to make her own decisions on her career.
“This is a decision for her to make — when it comes to the future, her future,” said White House press secretary Karine Jean-Pierre.
Other Democrats noticeably bristled at the suggestion that Feinstein should be forced out, or that the party would talk about her resignation at all. At least three House Democrats have already stated that Feinstein should step down, though no senators have yet joined them.
Sen. Joe Manchin (D-W.Va.) called the resignation talk among Democrats “very selfish.”
“Other people have different reasons and concerns that they couldn’t be here,” Manchin said, referring to a spate of health problems that have sidelined other senators recently. “We never asked them to step aside.”
House Democratic leadership is giving Feinstein similar room to maneuver, with No. 3 Rep. Pete Aguilar (D-Calif.) saying Tuesday she should set her own timetable. However, he added that as the debt ceiling fight heats up in Congress, “our expectation as House Democrats is that every senator is going to need to participate.”
Yet with the special Senate responsibility of confirming nominees, the problem is already acute across the Capitol.
With Feinstein absent and Republicans refusing to help temporarily replace her, the Judiciary Committee is now tied, hamstringing some Democratic nominees. There are 15 judges who have gone through a hearing — which can be conducted without Feinstein — and are awaiting a panel vote, according to numbers tallied by the American Constitution Society.
Still, there are 18 judges who have already been through the committee and can be brought to a vote on the Senate floor, some of whom may be able to move without the California Democrat.
There are some questions about whether the GOP would even fill Feinstein’s slot on Judiciary if she did resign, given that restoring Democrats’ majority on the panel effectively allows them to unilaterally confirm nominees. Sen. Jon Tester (D-Mont.) said that “whether she resigns or not, it isn’t gonna make any difference.”
But Sen. John Cornyn (R-Texas), a Judiciary Committee member and counsel to Minority Leader Mitch McConnell, said that Republicans may view a Senate vacancy differently than Feinstein’s request to seek a temporary replacement.
“Traditionally that’s when the resolution has been changed — when somebody is no longer able to serve,” Cornyn said. “There’s never been a precedent for a temporary replacement, it’s my understanding. So if the circumstances were to change, I assume that the precedent would be applied.”
Feinstein last voted in the Senate on Feb. 16, kicking off a period in which McConnell and Sen. John Fetterman (D-Pa.) also missed significant time. McConnell and Fetterman have since returned, adding to the pressure on Feinstein. Of course, that already existed in part because her absence was the only one that meant Democrats couldn’t confirm certain judges, the most significant thing the party can unilaterally accomplish during a divided government.
Manchin implored Durbin to send judges to the floor that have bipartisan support, which would allow Schumer to move to confirm more nominees but would also isolate a handful of more controversial nominees. Durbin said he hasn’t made the decision to do that at the moment.
Nicholas Wu contributed to this report.
