The Feinstein fault line threatens to upend Senate comity

Tensions are brewing over the extended health-related absence of Sen. Dianne Feinstein (D-Calif.), which has left the Senate Judiciary Committee potentially deadlocked. 

Feinstein made an unprecedented request for a temporary replacement until she can return so as not to hold up committee business, but Republican senators have so far objected to the move. The situation threatens to escalate the conflict that is slowly killing the norms and traditions that once earned the Senate the moniker of “world’s greatest deliberative body.”

The closely divided Senate — 51 Democrats and 49 Republicans — has left the chamber’s committees with a one-member margin for the majority. While the Judiciary Committee is technically 11 Democrats to 10 Republicans, Feinstein’s absence leaves the committee divided 10-10. The chamber’s rules do not currently allow a committee to advance nominees or measures on tied votes, nor may a member cast a decisive vote by proxy.

The power to provide a replacement lies not with party leaders but instead requires a resolution of the Senate, subject to a filibuster. While not unusual, mid-Congress committee assignment changes are usually predicated on the resignation or death of a member. In each of the last 15 Congresses, committee assignment matters were always handled by unanimous consent or a voice vote, meaning they were noncontroversial. This reflects a long tradition of deference in the Senate, where neither party interferes with the other’s committee assignments.

Given that Feinstein is not resigning and requesting replacement only on one of her committees, her request does not clearly fit within that tradition. Also important, Sens. John Fetterman (D-Pa.) and Mitch McConnell (R-Ky.), both of whom recently returned from extended absences, neither sought nor received temporary committee replacements.

Almost no issue has harmed the Senate more than the battle over the federal judiciary, with each party pointing fingers regarding its start. Former Democratic Leader Harry Reid went “nuclear” in 2013 to lower the threshold for ending a filibuster on nominations, ending a perceived blockade of President Obama’s judges. Republican Leader McConnell expanded that precedent to confirm President Trump’s Supreme Court nominee, Neil Gorsuch, and again later to speed all nominees through.

Grayer beards might recall Democrats’ slow walking of President George W. Bush’s nominees, which had Republicans threatening to go nuclear themselves. The origin might lie in earlier incidents: the torpedoed nomination of Justice Abe Fortas for chief justice under President Lyndon Johnson, the two consecutive failures of President Nixon’s nominees to replace Fortas when he later resigned, or Judge Robert Bork, a Supreme Court nominee of President Reagan’s whose confirmation failed in the Senate on a bipartisan vote 42-58. These Supreme Court battles are indicative of the more frequent skirmishes involving lower court judges.

The Feinstein fault line comes at an unfortunate time. The Judiciary Committee had been enjoying unusual bipartisanship on judicial nominees, with ranking Sen. Lindsey Graham (R-S.C.), and at times other Republicans, lending support to a number of Biden’s picks. Committee Chairman Sen. Richard Durbin (D-Ill.) has also been respecting another Senate tradition, the blue slip, which requires senators to sign off on judicial nominees for their home states.

Blocking a Feinstein replacement may secure a merely pyrrhic victory. The history of procedural warfare in the Senate is one of repeated retaliation. Democrats have several options if they can hold together their members. They could allow nominees to be reported out of committee on a tie vote. A now-expired resolution allowed such a move during the 50-50 Senate last Congress, as did one in the 107th Congress. Democrats could also allow committee assignment resolutions to proceed on a simple majority vote. With that power, Democrats could also tilt committee assignments further in their favor. Seeking further retribution, Democrats could kill the Judiciary Committee’s blue slip, eroding more norms but speeding more Biden nominees through.

Republicans are not without their own retaliatory measures. In addition to blocking a Feinstein replacement, they could grind the day-to-day business of the Senate to a crawl by withholding unanimous consent on routine procedural matters, consuming extensive floor time at the expense of the nation’s business. Any of these outcomes should be avoided.

The Senate’s folkways — deference, reciprocity and institutional patriotism — are part of what distinguishes it from the House. As those customs are sidelined, some have observed the Senate becoming more like the House. The proximity of the Feinstein saga to the House’s recent conflicts over committee assignments may be further evidence of the “Housification of the Senate.” Others have questioned whether we even need a Senate.

While the Senate has taken many broadsides in recent decades, at key moments Republican and Democratic members have come together to prevent a total collapse of Senate norms. For example, in 2017, 60 senators admirably signed a bipartisan letter calling for the filibuster to be preserved on legislation. During the Bush era, a gang of 14 senators worked out a compromise and the filibuster survived.

A high-profile skirmish over committee assignments threatens the very fabric of the Senate. Republicans are correct that Feinstein’s request for a temporary replacement is unprecedented and perhaps they are justified in wanting the matter resolved permanently rather than temporarily. But if Feinstein resigns from the Senate, it would be unprecedented to block a replacement. Hopefully, a gang of senators emerges again to negotiate a collegial resolution, another norm of the institution.

Michael Thorning is the director of Structural Democracy at the Bipartisan Policy Center. Prior to joining BPC, Thorning worked on Capitol Hill for Sens. Jeff Bingaman (D-N.M.) and Tom Udall (D-N.M.).