Replacing Feinstein can be complicated, Senate history shows
Former Confederate general’s request to leave Foreign Relations Committee in 1891 was rejected
Senate Majority Leader Charles E. Schumer said Monday that Republicans should let another Democratic senator temporarily fill California Sen. Dianne Feinstein’s Judiciary Committee seat.
But the New York Democrat said he still needed to consult with the caucus on who the selection should be.
“I spoke to Sen. Feinstein just a few days ago. She believes she will return soon, she is very hopeful of that, and so am I,” Schumer told reporters. “I think Republicans should allow a temporary replacement until she returns.”
Schumer said he hoped the GOP would join in the effort, but like many things in the Senate, that could be up for negotiation.
"We're not going to help Democrats confirm the controversial nominees that are being held up," Texas GOP Sen. John Cornyn said.
Cornyn, a former member of leadership, said he did not expect there to be 10 Republican votes to invoke cloture on replacing Feinstein on the Judiciary Committee. Cornyn was also asked whether Republicans would agree to assign a replacement for Feinstein if she were to resign early.
"We'll cross that bridge ... when we come to it," Cornyn said. "We look forward to seeing her back."
Sen. Marsha Blackburn, R-Tenn., said in a tweet Monday that agreeing to replace Feinstein meant going along with a plan to "pack the court with activist judges" she said were unqualified. Her reaction followed similar comments from Arkansas GOP Sen. Tom Cotton.
Senators are normally assigned to (and allowed to resign from) committees by unanimous consent, but such orders are actually subject to debate and can be filibustered.
That’s why it regularly takes the Senate weeks to organize committees at the start of a new Congress, and why filling any vacancy in a narrowly divided Senate can be complicated. Last week, Feinstein issued a statement saying she was asking Schumer to let a fellow Democrat fill her seat temporarily on the Judiciary Committee during her absence.
Feinstein has been absent from the Senate chamber since before she was hospitalized with a case of shingles in early March. In last week’s statement, she indicated that medical professionals were advising her against traveling back east from her home in San Francisco.
“When I was first diagnosed with shingles, I expected to return by the end of the March work period,” the statement from Feinstein said. “Unfortunately, my return to Washington has been delayed due to continued complications related to my diagnosis.”
Sen. Amy Klobuchar, a member of the Judiciary Committee, said Sunday on ABC’s “This Week” that a further extended absence could be problematic beyond the Judiciary panel.
“It's going to become an issue as the months go by. But I'm taking her at her word that she's going to return,” the Minnesota Democrat said.
Feinstein also serves on the Appropriations Committee, where Chair Patty Murray of Washington and ranking Republican Susan Collins of Maine have said they want to move fiscal 2024 spending bills. Feinstein also sits on the Intelligence and Rules and Administration panels. At Appropriations, Feinstein chairs the Energy and Water Development Subcommittee.
“I think she made the right decision to step off the Judiciary Committee. I serve on that committee. And we cannot advance judges or legislation with a missing person because of the close vote,” Klobuchar said.
A resolution seeking to fill the Feinstein seat on the Judiciary panel could also be subject to amendment to strike the name of the senator Schumer would like to see as the replacement and choose someone else. That could mean Schumer needs Sen. Kyrsten Sinema, the Arizona independent who still gets committee assignments through the Democrats, on board with the named placeholder senator.
Past requests blocked
There is precedent for blocking a senator from being allowed to resign. Riddick’s Senate Procedure cites a 1946 case in which a request from Sen. Wayne Morse, D-Ore., to resign from a committee that was “left in abeyance” after the request to resign by unanimous consent faced an objection.
There are also earlier cases when such requests were declined by the Senate, including in March of 1891. Sen. John Tyler Morgan, an Alabama Democrat who had been a Confederate general and Ku Klux Klan leader, sought to resign from the Foreign Relations Committee.
After a brief debate, Sen. John C. Spooner, R-Wis., said, “I believe it is the unanimous judgment of the Senate without regard to party that the withdrawal of that Senator from service upon that committee would be a serious public loss. His service there has been broadminded, fearless, able, lofty, and patriotic.”
The Senate, in 1891, decided by voice vote to decline Morgan’s effort to leave the committee.
Even a Feinstein resignation from the Senate itself would not necessarily resolve the committee assignment issue, since the measure to seat a successor appointed by Democratic Gov. Gavin Newsom would also be debatable.
Aidan Quigley contributed to this report.