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Pressure Mounts on Feinstein to Return to DC, as Democrats Scramble to Confirm Federal Judges

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Sen. Dianne Feinstein is seen behind a slightly open large wooden door.
Sen. Dianne Feinstein (D-Calif.) leaves the Senate chamber following a vote at the US Capitol on Tuesday, Feb. 14, 2023. Shortly thereafter, Feinstein was hospitalized with a case of shingles. California's longest-serving senator, Feinstein had previously announced she would not run for reelection next year, marking the end of one of the state's most storied political careers. She plans to remain in office through the end of her term. (Kent Nishimura/Los Angeles Times via Getty Images)

In 1993, shortly after becoming California’s first female senator, Dianne Feinstein joined the embattled Senate Judiciary Committee, breaking its all-male stronghold. She went on to become the top-ranking Democrat on the panel — the first woman to assume that role.

But now, three decades later, it’s her absence from that key committee that is making headlines and causing headaches for her fellow Democrats.

The 89-year-old senator from San Francisco has been out of work since she was diagnosed with a case of shingles in late February. Her prolonged recovery has prevented her from returning to the Senate, where her vote is essential to advancing President Biden’s judicial nominees.

There are currently 36 pending judicial nominees, according to the American Constitution Society. Of those, 12 — including four from California — must first be voted on in the Judiciary Committee before receiving a final confirmation vote in the Senate. Feinstein’s absence makes that more difficult, if not impossible.

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Feinstein reportedly spoke to Senate Majority Leader Chuck Schumer on Sunday and assured him she’d return to work soon, but her office hasn’t indicated exactly when she’ll be strong enough to fly back to Washington, D.C.

In recent weeks, Feinstein’s D.C. office has also lost several key members, including her chief of staff, David Grannis, who left to become executive director of the Commission on the National Defense Strategy.

Shortly before her departure in February, Feinstein, who is California’s longest-serving senator, announced she would not run for reelection next year, but plans to remain in office through the end of her term.

Last week, amid mounting pressure for her to return, Feinstein asked Schumer to appoint another Democrat to temporarily replace her on the committee. Ordinarily that would be fairly routine, but apparently it’s not in this case, where a key Democratic goal of confirming more judges hangs in the balance.

“The Senate is very arcane in terms of its procedures,” said Carl Tobias, professor at the University of Richmond School of Law. “And it turns out that one senator can block that type of request unless you have 60 votes for cloture (a process for ending debate) to pass a resolution that allows something like that replacement to happen.”

Tobias says the issue could also be resolved if a Republican member of the committee were to vote in favor of the judicial nominees, which would break any deadlock in Feinstein’s absence.

“And they’re not controversial,” Tobias said of the dozen nominees now awaiting a committee vote. “There weren’t any problems with them from the Republican side I think even in committee, when they had the hearings.”

One possible yes vote, Tobias notes, could come from South Carolina Sen. Lindsey Graham, the ranking Republican on the committee, whom Tobias calls “an institutionalist.”

“I think he was saying nice things about Sen. Feinstein and has a good relationship with her,” Tobias said. “And so it could all work out well without dragging on for a long time yet.”

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But at least two Republican senators on the committee — Tom Cotton of Arkansas and Marsha Blackburn of Tennessee — have said they would not join a unanimous consent vote, which would be the fastest way to replace Feinstein on the committee. And Senate Minority Leader Mitch McConnell, who also was recently in the hospital — for a concussion — and just returned to the Senate Monday after more than a month’s absence, has not yet indicated whether he will cooperate with Schumer’s request to replace Feinstein.

Among California’s Democratic congressional delegation, only Ro Khanna, from Fremont, has publicly called on Feinstein to retire. “Because Sen. Feinstein has been absent since February, I said enough is enough,” Khanna said last week. “We’ve got to tell the truth that Sen. Feinstein simply hasn’t been doing her job. And that’s why I called on her to resign.”

But other high-profile Democrats, including House Speaker Emerita Nancy Pelosi, have stood by her.

“It’s interesting to me. I don’t know what political agendas are at work that are going after Sen. Feinstein in that way,” Pelosi said last week, suggesting some degree of sexism was at play. “I’ve never seen them go after a man who was sick in the Senate in that way.”

New York Democratic Sen. Kirsten Gillibrand also pushed back on those calling for Feinstein’s resignation.

​​“She’s a team player, and she’s an extraordinary member of the Senate. It’s her right,” Gillibrand told CNN on Sunday. “She’s been voted by her state to be senator for six years. She has the right, in my opinion, to decide when she steps down.”

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