UPDATE: Joan McCarter
Of course Republicans aren’t going to let this happen without some kind of “deal.” And McConnell has announced he’ll be back next week, probably to make sure this process is a painful as possible.
“You are asking Republicans to open the door to passing through a slate of judges we view as very controversial,” said one senior GOP aide. “Why would we do that without any kind of negotiation? And how would Democrats react if the situation was reversed?”
Sen. Dianne Feinstein asked to be temporarily removed from the Senate Judiciary Committee Wednesday, close on the heels of media reports that her absence following an illness is complicating Senate Democrats’ efforts to confirm federal judges. Reports at both Politico and NBC News said that Democrats are “increasingly concerned” and “rais[ing] alarms” at her prolonged recovery from shingles and resulting absence from the Senate.
The California Democrat addressed those concerns immediately following the reports, issuing a statement saying that she would return to Washington “as soon as possible once my medical team advises that it’s safe for me to travel,” adding that she was working from home in San Francisco. “When I was first diagnosed with shingles, I expected to return by the end of the March work period. Unfortunately, my return to Washington has been delayed due to continued complications related to my diagnosis,” she said.
“I understand that my absence could delay the important work of the Judiciary Committee,” she added. “So I’ve asked Leader Schumer to ask the Senate to allow another Democratic senator to temporarily serve until I’m able to resume my committee work.”
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A spokesperson for Majority Leader Chuck Schumer quickly issued a statement saying, “Per Sen. Feinstein’s wishes, Majority Leader Schumer will ask the Senate next week to allow another Democratic Senator to temporarily serve on the Judiciary Committee.”
Feinstein has been absent since early March, when a case of shingles landed her in the hospital. She announced earlier this year that she plans to retire after her current term (which ends next year), but reiterated Wednesday that she intends to complete this term. She’s missed every vote since Feb. 16 and her absence has meant the Judiciary Committee is stuck on numerous nominees, effectively deadlocked with 10 Democrats and 10 Republicans present. It needs a majority present and voting to send nominees to the floor for full votes. There are currently 14 nominees who have had hearings and are now awaiting a vote.
Replacing Feinstein, even temporarily, might be easier said than done. Changing committee assignments requires the agreement of Republicans. Schumer will likely move to do so via unanimous approval from the Senate when they return next week, and a Republican will almost certainly oppose that. That would mean getting 60 votes to seat Feinstein’s replacement. In other words: breaking a Republican filibuster.
Finding 10 Republicans willing to do that could be a problem, depending on how willing and united they are in being obstructionist assholes. This also brings into question Minority Leader Mitch McConnell’s status. He’s been absent since a serious fall in early March that required both a hospitalization and a stint in a rehab facility. There have been no reports of when he’s likely to return, something the Washington press corps hasn’t been following with bated breath.
Assuming, however, that Republicans do their thing and block the replacement, things get complicated. Schumer—or another Democrat—would have to make a motion to break the filibuster and move that a simple majority of 51 votes could change the make-up of committees on a temporary basis. In other words: a mini-nuclear option. Schumer would need the vehemently anti-filibuster reform senators Joe Manchin and Kyrsten Sinema on board. It doesn’t seem like it would be a huge ask to get them to break Republican obstruction so this critical committee could get work done—but then again, it’s Manchin and Sinema we’re talking about.
There’s still a larger problem: that when nominees get to the floor, Feinstein possibly isn’t there to help confirm them because as of now, there’s no indication of when she will be able to return. She can do other work from home, but she can’t cast votes.
The Senate Democrats’ slim 51-seat majority is already challenged because two of those votes belong to Manchin and Sinema. During Feinstein’s absence, Democrats have needed Vice President Kamala Harris’ vote to break several ties on Biden nominees during floor votes. Feinstein’s willingness to step away from the committee, even if only temporarily, is crucial. But it might not be enough.