Here’s an updated take that will undoubtedly draw some objections: Feinstein holding the seat until the election next year may be the most responsible thing she can do in case of one possible, albeit unlikely, scenario: a vacancy on the Supreme Court. In indulging her stubbornness, her ego, her paranoia—whatever we want to call it—Feinstein may be what stands between a
6-to-3 conservative Supreme Court majority tilting to a 7-to-2 position, or the key to it shifting back to 5-4. Either of those outcomes would be one liberals may regret not having taken more seriously.
The reason why Feinstein holds all this power is tied to her seat on the Senate Judiciary Committee. Democrats have an 11-to-10 advantage over Republicans on the panel, giving them zero margin for error in advancing President Joe Biden’s nominees for lifetime appointments to federal courts, including the Supreme Court. A tied 10-to-10 vote, at least under the current rules, leaves those nominees potentially stuck in limbo. Whenever she’s absent, Feinstein leaves Democrats on the committee with an insufficient 10 votes.
So one might argue that all that is more reason for Feinstein to resign, and let a younger, healthier Democrat take over her spot on the committee. But that’s not what would be guaranteed to happen. Even if Feinstein were to leave her seat early, allowing California Gov. Gavin Newsom to appoint an interim lawmaker until after the 2024 election, there is nothing ensuring that that successor could be the 11th vote on Judiciary. Committee assignments are part of the start of every Congress, and changes are subject to 60 votes if some lawmakers
object and demand a recorded vote. That means 10 Republicans would have to allow Democrats to either send Feinstein’s replacement or another lawmaker into that role. There is scant evidence that Republicans would accede to that request.
Need proof? In April, the Senate
considered Feinstein’s request that she be allowed to step away from Judiciary for a beat, and to
allow another Democrat to take her seat. The
effort, clearly heading to defeat, wasn’t even put to a
floor vote. Even in a body known for its cordiality across party lines, Republicans saw the ability to confirm nominees to lifetime gigs in robes and wielding gavels as more important than courtesy to an ailing colleague. “We’re not going to help the Democrats with that,” Republican Sen. Joni Ernst of Iowa
said.
