The Judiciary Committee Conundrum

[ Posted Monday, April 17th, 2023 – 15:41 UTC ]

We may get to a crossroads this week over the situation Senator Dianne Feinstein's absence in Washington has created. But that's not the same thing as the problem actually being resolved, which could take longer. Senate Majority Leader Chuck Schumer is reportedly going to call for a vote on temporarily replacing Feinstein on the Senate Judiciary Committee, while still allowing her to keep her Senate seat. Not having Feinstein in Washington impacts the Democrats' ability to round up enough votes -- but not in a critical way -- for Senate floor votes. Not having Feinstein on the Judiciary Committee, however, has meant the halt of Biden judicial nominees getting expedited committee votes to move their nominations to the floor. That is a much more serious matter.

What seems likely to happen next is that Schumer will call for "unanimous consent" to approve the temporary committee assignment shuffle. However, any single senator can block this move, and two Republicans have already indicated they are going to do so (Tim Cotton and Marsha Blackburn). Which means the motion for unanimous consent will fail.

The next step would be to move the vote to the floor, but there it will still be subject to a filibuster -- which is likely to happen. So Schumer would have to get 10 Republicans to vote to essentially help President Biden and the Democrats smoothly appoint federal judges to lifetime jobs on the federal bench. You can see why there is a whole lot of motivation for them not to agree to this, but if Senate Minority Leader Mitch McConnell were on board it could come to pass.

The Democrats nominally have a 51-49 majority in the Senate, but without Feinstein that drops to 50-49. So 10 Republicans will be needed. There are a handful of Republicans (such as Lisa Murkowski and Susan Collins) who might already be inclined to help Feinstein out, since they've worked with her before on big bipartisan bills and they have a lot of respect for Feinstein. But even if McConnell voted for the plan, he'd still probably need to scare up at least five or six other Republicans to follow his lead in order to get to the magic 60 votes. And it's an open question whether he could even do so, even if he were inclined to help Schumer out.

Schumer seems hopeful, at least at this point:

[Senate Majority Leader Chuck] Schumer said Monday afternoon that he wants to quickly sub in another senator for [Senator Dianne] Feinstein (D-Calif.), whose absence from the Judiciary panel is hampering Democrats' ability to easily confirm more of President Joe Biden's nominees to the federal bench. The New York Democrat said he is angling to have a conversation with Minority Leader Mitch McConnell about the matter soon.

Feinstein is "hopeful on returning soon," Schumer said, adding: "We think the Republicans should allow a temporary replacement till she returns. I hope the Republicans will join us in making sure this happens since it is the only right and fair thing to do."

Interestingly enough, Mitch McConnell is just returning to the Senate from his own period of convalescence, as he recovered from injuries sustained in a fall (on March 8th). So perhaps he's in a mood to help out another senator with medical issues?

However, McConnell seems to have much to gain and little to lose by either outright blocking Schumer's move (by whipping his caucus to sustain the filibuster) or declaring himself neutral and then watching as Schumer can't round up enough Republicans to succeed. If McConnell actively helped Schumer, he might gain some chits for the future, in case Republicans retake control and he runs into some similar problem with a GOP medical absence. But he'd earn the ire of Donald Trump and the MAGA base (who already routinely excoriate him as a RINO). Blocking the move, either actively or passively, would instead at least delay the committee's ability to quickly approve Biden nominees, and quite possibly might shut it down until ("if/when" at this point) Feinstein returns to her duties. That would boost McConnell's standing with his own party's base, obviously.

Schumer is kind of stuck trying to portray Feinstein's situation as both a big problem and a minor, temporary thing. But if it will be a short-term absence -- if Feinstein quickly recovers enough to be medically cleared to fly at least -- then an absence of a few weeks wouldn't be all that big a deal in the grand scheme of things. But if it's a medium-term absence (on the order of months, not weeks), then obviously a committee replacement would be a much bigger issue.

The problem is, nobody knows if Feinstein's ever going to make it back. She is, after all, 89 years old. And if Republicans manage to block both the unanimous consent vote and sustain a filibuster, then there's only going to be one possible way to solve the problem: Feinstein resigns. California Governor Gavin Newsom could quickly appoint a successor and she (Newsom has promised to appoint a Black woman) could be sworn in with minimal delay.

I'm not sure -- nobody seems to have taken the speculation this far yet -- what a new California senator would mean for the Judiciary Committee, though. Would the new senator just sort of "inherit" Feinstein's committee assignment? Or will Democrats still be in the same bind, needing either unanimous consent or 10 GOP votes to officially appoint a new member of the Judiciary Committee? If the latter is the case, Republicans would have a much harder time justifying their obstructionism -- the committee seat really should be filled, after a senator retires -- but they might just continue obstructing anyway. After all, since Mitch McConnell is capable of blocking a Supreme Court nominee for some fanciful and entirely made-up reason, he is capable of pretty much anything. Shaming senators into "doing the right thing" may just not work, in other words.

But assuming that isn't the case -- assuming that the committee seat would be filled in some way or another -- Feinstein stepping down may indeed be the only way to get the committee back up to full strength again.

I should at least mention that it wouldn't be the end of the world if Republicans did block the committee seat from being filled, however. As that article quoted above noted, Democrats now have a one-seat majority on the committee. If it stays empty, it means an evenly-split committee. Which means: "judicial nominees without bipartisan support cannot come to the Senate floor without laborious procedural votes to shake them loose." And that's precisely what Schumer had to work with during the first two years of Joe Biden's term -- an evenly-split Senate meant evenly-split committees.

Biden did manage to get appointments through in his first two years, though. It could be done again. But it would be incredibly time-consuming. It would slow down the overall pace of nominees getting confirmed (which is already a pretty slow process). But it wouldn't be a total roadblock.

If Schumer can get Feinstein replaced, it means nominees go through a much smoother and much quicker path to the Senate floor. He will take the first step towards trying to do this, this week. By all reports, the unanimous consent motion will fail. Schumer does seem to have a fire lit under him on the issue, so perhaps his next steps will also happen fairly rapidly. He controls what goes on the floor, so the timing is all up to him. As for when the problem actually gets resolved, well that's anyone's guess at this point. The safe bet would be on that not happening by the end of the week, though.

-- Chris Weigant


Follow Chris on Twitter: @ChrisWeigant


5 Comments on “The Judiciary Committee Conundrum”

  1. [1] 
    John M from Ct. wrote:

    Insider baseball doesn't get much insider than this column.

    You lost me when you introduced the idea that a Feinstein replacement could become possible IF Sen. McConnell decided to bail his good buddy Chuck Schumer out and try to round up enough Republican votes to do the deal.

    But then, it quickly seemed, we have no reason at all to think that McConnell would do such a thing, except for his feeling a natural human sympathy for a fellow ailing and aging colleague. I almost laughed out loud at that one - as did you, noting the Minority Leader's natural tendency to be an A-hole of the first water when it comes to political maneuvering for party advantage.

    Another couple of paragraphs, and it becomes clear that McConnell has NO incentives to help Schumer and MANY incentives to obstruct him.

    Why, then, bring it up in the first place?

  2. [2] 
    Elizabeth Miller wrote:

    Why, then, bring it up in the first place?

    To start a discussion, silly. :)

  3. [3] 
    nypoet22 wrote:

    more likely, to harp on the damage difi has done by drastically overstaying her sell-by date in the senate.

  4. [4] 
    MtnCaddy wrote:

    I’m in the “harp on DiFi” camp — in fact, please allow me to pile on:

    She really is soiling her legacy (and keeping Barbara Lee out of the Senate.)

  5. [5] 
    Mezzomamma wrote:

    Feinstein really should resign and, sad to say, should have done so sooner. Her cognitive decline has been all too evident for some time now.

Comments for this article are closed.