Can Feinstein Lead Supreme Court Battle? Some Democrats Have Doubts

Sen. Dianne Feinstein pays her respects to the late Supreme Court Justice Ruth Bader Ginsburg as she lies in state in the Statuary Hall of the US Capitol, on Sept. 25, 2020. (Erin Schaff/Getty Images)

As the nation waits to see who President Trump will name to the U.S. Supreme Court seat vacated by the death of Justice Ruth Bader Ginsburg, there are whispers about whether Sen. Dianne Feinstein — the ranking Democrat on the Senate Judiciary Committee — is the right person to lead the fight against the confirmation.

Feinstein has long been to the right of many California Democrats, and over her decades in public service she's never been a favorite of the progressive wing of the party. In recent years, the 87-year-old senator has angered some for being too collegial and bipartisan at a time when many Democrats are ready to fight.

This week, Politico published a story citing more than a dozen unnamed Democratic sources expressing concern about whether Feinstein is “capable of leading the aggressive effort Democrats need” to fight whomever Trump names.

And while most people are reticent to challenge the powerful senior senator on the record, some progressive leaders in California did speak out this week when Feinstein said she would not support ending the filibuster — the arcane Senate rule that lets the minority party block legislation. Ending the filibuster is a long-term goal of progressive Democrats.

“Filibusters are a relic from the time of segregation,” said San Jose Assemblyman Ash Kalra.

As the first Indian American to serve in the state Legislature, Kalra is emblematic of the new face of the party. He supported former California Senate President Kevin de León in 2016 when the fellow Democrat unsuccessfully challenged Feinstein.

Kalra says it’s important for Democrats to make clear to Republicans that if they push through a nomination before the election — “go nuclear,” as he put it — that all options are on the table.

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“For the senator to already say that, you know, she likes the filibuster because of some historic sense of attachment, I think is out of tune with where we need to be as a Democratic Party and certainly not in step with the fight that Californians are willing to put up right now,” Kalra said.

Loyola Law School Professor Jessica Levinson said practically speaking, the outcome of the Supreme Court nomination fight will be the same no matter how Feinstein performs in any confirmation hearings.

"All of this is important, but probably doesn't matter because Republicans have the votes,” she said.

But politically?

“It does matter,” Levinson added. “I mean, how much is that going to swing the swing voters in the swing states? I don't know. But you certainly don't want to feed a narrative of the Democratic Party being controlled by people who are essentially too old to have the position.”

But not everyone on the party’s left flank is worried that Feinstein can’t handle the heat.

Congressman Ro Khanna, who co-chaired Bernie Sanders’ national campaign, also supported Feinstein’s opponent in 2016 and said she’s wrong on the filibuster question. But he believes she performed well during the last, contentious Supreme Court confirmation fight over now-Justice Brett Kavanaugh two years ago — despite the fact that some Democrats are still angry that she sat on sexual assault allegations against him for several weeks.

“I think she's up for it,” Khanna said. “She was a vocal opponent of Kavanaugh and helped lead the strategy. She understands what is at stake. And I have confidence that she will fight this effectively.”

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Feinstein’s office did not make her available for an interview, but the senator spoke Thursday in a Judiciary Committee hearing about what’s at stake. And she expressed outrage at President Trump’s refusal to commit to a peaceful transfer of power should he lose the election.

“We lost Justice Ginsburg last Friday, just 46 days before the election. When there was a vacancy 10 months before the last election, the Senate refused to consider the nomination,” she said.

“So let me be clear. Neither this committee nor the Senate should consider a nomination at this time. I recognize I don't have the power to carry through, but I feel it very deeply. The next president, whether Joe Biden or Donald Trump, should make the decision who to nominate. If things move forward and a nominee is confirmed before a new president is inaugurated, it is deeply concerning."