Absences in the Senate are becoming an issue for Democrats, leaving them with a fragile majority.
Senate Democrats have been without Sens. John Fetterman (Pa.) and Dianne Feinstein (Calif.) in recent weeks, creating a 49-49 split in the chamber that has forced members of the conference to only bring up votes that they know have bipartisan support and caused problems at the committee level.
“It’s the reality. When you’re 51-49, every senator every day is decisive,” Sen. Dick Durbin (Ill.), the No. 2 Senate Democrat, told The Hill. “This is the reality of life in the Senate.”
Fetterman has been out for much of the past month after checking himself into Walter Reed National Military Medical Center for treatment for clinical depression. Though his office has tweeted pictures of him meeting with staff at the hospital and said he is engaged on a number of legislative items, including rail safety and the farm bill, he is not expected back in the Senate this week.
Feinstein, 89, is recovering at home from a case of shingles, having missed the last two weeks of votes. The California Democrat, who is the oldest sitting U.S. senator, tweeted last week that she was continuing to receive treatment and was hoping to return to Washington “as soon as possible.”
That 49-49 split can fluctuate with other short-term absences. But the loss of the two reliable votes for Democratic nominees and issues is already creating headaches on the Senate floor as the chamber takes up privileged resolutions pushed by Republicans via the Congressional Review Act, which do not need Senate Majority Leader Chuck Schumer’s (D-N.Y.) blessing to come to the floor and require only a simple majority to pass.
The Senate this week is set to take up a resolution disapproving of the Biden administration’s Waters of the United States (WOTUS) rule. Without the Democratic pair, the measure is expected to pass with the support of Sen. Joe Manchin (D-W.Va.) and possible other Senate Democrats, forcing Biden to wield his veto pen.
The pair being sidelined forced Vice President Harris to be present on Feb. 28 for two tiebreaking votes on district court nominees.
And President Biden’s pick to the Federal Communications Commission Gigi Sohn withdrew her name from consideration last week after Manchin said he would not back her, essentially dooming her nomination. Democrats would have needed all members present and voting to overcome Manchin’s “no” vote.
Feinstein’s absence, in particular, has had an outsized impact as the Senate Judiciary Committee, on which she serves, has been forced to punt votes on a number of nominees in each of the past two weeks and been unable to put them on a path toward votes on the Senate floor.
Among the nominees who’ve been delayed is Charnelle Bjelkengren, who President Biden tapped to serve as a district court judge for the Eastern District of Washington. Bjelkengren has been the target of GOP opposition after she stumbled over some questions during her confirmation hearing.
The panel also held off on voting to advance Orelia Merchant’s nomination for the Eastern District of New York in Brooklyn and two other nominees for trial court seats in New Jersey.
Democrats hold an 11-10 advantage on the panel, but are unable to advance their nominees without Feinstein or winning GOP support for any individual nominee.
Feinstein is expected to return to work later this month.
“Does it create challenges? It absolutely does. Does it slow the process down? Sometimes,” Sen. Cory Booker (D-N.J.), a Judiciary Committee member, told The Hill. “But we’re all human beings and these are the times you have to take those things into account and give as much leniency as you can. … It happens on both sides of the aisle.”
Indeed, Senate Minority Leader Mitch McConnell (R-Ky.) was hospitalized Wednesday night after falling and treated for a concussion. It is unclear when he will return to the Capitol.
And absences are nothing new for Democrats. Two members last year — Sens. Chris Van Hollen (D-Md.) and Ben Ray Luján (D-N.M.) — suffered strokes in early 2022, forcing the party to manage without them for a time. Sen. Bob Casey (D-Pa.) was out for just under two weeks earlier this year to be treated for prostate cancer.
But heading into the 118th Congress, Senate Democrats were buoyed with optimism that their newly minted 51-49 majority would pay major dividends after two years of a 50-50 chamber.
Still, Democrats say they are able to work around the absences — for now.
“I think for now we have flexibility to move nominees where we don’t need every one of our votes. Obviously there could come a time where that’s a constraint, but by then we’ll have all of our contingent,” Van Hollen said. “I think we have enough nominations in the pipeline that we can win with the votes we’ve got … but obviously, at some point, it may become an issue.”
In total, the Senate confirmed nine district court nominees in the past two weeks, along with Maria Araújo Kahn, a nominee for the U.S. Court of Appeals for the Second Circuit. Other administration nominees also were passed with some GOP support, including Daniel Werfel to become the new IRS commissioner.
“We’re working around them,” Sen. Richard Blumenthal (D-Conn.) said of the absences. “Stuff happens. We’re human.”