Democrats Worry Feinstein Can't Handle Supreme Court Battle
By John Bresnahan and Marianne LeVine, POLITICO
25 September 20
s the Senate prepares for yet another brutal Supreme Court nomination fight,
one particularly sensitive issue is creating apprehension among Democrats:
what to do with 87-year-old Sen. Dianne Feinstein, the ranking member of the
Judiciary Committee.
Feinstein, the oldest member of the Senate, is widely respected by senators
in both parties, but she has noticeably slowed in recent years. Interviews
with more than a dozen Democratic senators and aides show widespread concern
over whether the California Democrat is capable of leading the aggressive
effort Democrats need against whoever President Donald Trump picks to
replace the late Justice Ruth Bader Ginsburg.
The Judiciary Committee is the critical battleground in the Supreme Court
confirmation process. At stake, her own Democratic colleagues worry, is more
than just whether the party can thwart Senate Majority Leader Mitch
McConnell (R-Ky.) in his rush to fill the seat. Some Democrats privately
fear that Feinstein could mishandle the situation and hurt their chances of
winning back the majority.
Feinstein sometimes gets confused by reporters' questions, or will offer
different answers to the same question depending on where or when she's
asked. Her appearance is frail. And Feinstein's genteel demeanor, which
seems like it belongs to a bygone Senate era, can lead to trouble with an
increasingly hard-line Democratic base uninterested in collegiality or
bipartisan platitudes.
Just this week, Feinstein infuriated progressives after declaring her
opposition to ending the Senate's legislative filibuster - a top goal of
party activists if Democrats win full control of the Congress and White
House in November. Some on the left called on her to resign over the
comments, although other Democratic moderates have expressed similar views.
In a phone interview, Feinstein pushed back hard against suggestions she
could no longer effectively serve as ranking member of the Judiciary panel
or is incapable of handling the upcoming nomination fight.
"I'm really surprised and taken aback by this. Because I try to be very
careful and I'm puzzled by it," Feinstein told POLITICO. "My attendance is
good, I do the homework, I try to ask hard questions. I stand up for what I
believe in."
Feinstein relies heavily on her ever-present staff to deal with any issues,
frequently turning to them for help in responding to inquiries. Feinstein
had to be coaxed into wearing a mask around the Senate during the early days
of the pandemic, despite being part of the most vulnerable age groups for
the disease. She's only made two floor speeches in the last nine months, her
last being in early July, although she remains active in committee hearings.
And then there's the lingering fallout over Feinstein's role in the hugely
controversial Judiciary Committee hearings for Justice Brett Kavanaugh in
2018, an issue that factors deeply into the questions about her suitability
for this latest nomination fight.
Feinstein waited for several weeks before disclosing allegations by
Christine Blasey Ford that Kavanaugh had sexually assaulted her when they
were teenagers. The bombshell accusations nearly sank Kavanaugh's
nomination, and senators in both parties questioned why Feinstein didn't
move more quickly to disclose Blasey Ford's statement.
A Democratic senator, speaking on the condition of anonymity, said a group
of Feinstein's colleagues want Sen. Dick Durbin (D-Ill.) or Sheldon
Whitehouse (D-R.I.) to serve as the top Democrat on the Judiciary panel for
the upcoming nomination hearings, which are expected to be extraordinarily
contentious. This senator is worried that potential missteps by Feinstein
could cost Democrats seats.
"She's not sure what she's doing," the Democratic senator said of Feinstein.
"If you take a look at Kavanaugh, we may be short two senators because of
that. And if this gets [messed] up, it may be the same result."
"I think it could impact a number of seats we can win," the senator added.
Another Democratic senator said party leaders were "in an impossible
position," pointing out that Senate Minority Leader Chuck Schumer (D-N.Y)
and other senior Democrats can't replace a female senator for hearings on an
expected female nominee to replace a deceased female Supreme Court justice.
However, the senator said there have been discussions among some Democrats
about making changes to the seniority system next year due to their concerns
over Feinstein. The California Democrat would be Judiciary chair if
Democrats win the majority.
A third Democratic senator put it this way: "She can't pull this off."
Other Democrats privately said there have been complaints to party leaders
that Feinstein is not capable of handling the Judiciary post in the current
situation. Some of these senators said Feinstein should have retired rather
than run for reelection in 2018 at age 85. Feinstein's age was an issue in
that campaign and was raised repeatedly in news reports, but she defeated
Democrat Kevin de Leon by almost 10 points.
Feinstein has already stumbled once in tangling with Amy Coney Barrett, who
is widely seen as the frontunner to be Trump's Supreme Court nominee. At a
2017 hearing for an appeals court seat, Feinstein told Barrett that "the
dogma lives loudly within you" - a remark that was instantly seized upon as
anti-Catholic bias by Republicans.
Schumer declined to comment on Feinstein or her role on the Judiciary
Committee.
To Feinstein, her work on the panel is comparable to what she's seen from
other Democratic ranking members across the Senate.
"And so it's difficult for me to see, I don't know what people expect,"
Feinstein said. "I've been on the committee for a while. I've seen how the
committee works and I've seen how other chairs on our side of the aisle
work. I don't see, to be very blunt and honest, I don't see a big
difference. I'm prepared, so that's puzzling to me."
Feinstein also pointed out that as the minority, Democrats only have limited
weapons to wield in any nomination fight. McConnell eliminated the
filibuster for Supreme Court nominees, so Democrats can slow the
confirmation process down, but they can't stop it as long as Republicans
stick together.
"Let me say this - I know it's going to be a fight, I understand that."
Feinstein said. "I don't have a lot of tools to use, but I'm going to use
what I have. We can try to delay and obstruct but they can run this process
through. That doesn't mean that we won't fight tooth and nail."
Feinstein - the first woman to serve as ranking member on Judiciary - has
built a long record of legislative success since becoming a senator. She
authored the 1994 assault weapons ban, pushed to increase automobile
fuel-efficiency standards, and has been a leader on environmental and civil
rights issues. Feinstein also led a long probe into the CIA's post-9/11
interrogation and detention programs that led to the historic 2014 torture
report.
When asked whether Feinstein is still capable of doing the job of ranking
member, Durbin said, "I believe she is." Durbin is next in line on the panel
behind Feinstein. Sen. Patrick Leahy (D-Vt.) has served longer on Judiciary
than any other Democrat, but he serves as ranking member on Appropriations
and can't hold both positions.
Durbin said he wasn't aware of any discussion over replacing Feinstein. And
as to suggestions from some of his colleagues that he should take over the
Judiciary post, Durbin added, "I'm not going to get into that speculation."
Whitehouse, a former U.S. attorney, wasn't eager to discuss the Feinstein
situation either, offering only a terse comment on the matter.
"She's a very distinguished lady for whom I have great affection,"
Whitehouse said, declining to comment any further.
There is recent Senate precedent in both parties for replacing senior
senators who are seen as no longer capable of handling the job.
The late Sen. Strom Thurmond (R-S.C.) was replaced as the chairman of the
Armed Services Committee during the late 1990s. And in 2008, the late Sen.
Robert Byrd (D-W.Va.) voluntarily gave up his role as Appropriations
Committee chairman. Over on the House side, committee chairs have been
forced out at several key panels in recent decades, including Appropriations
and Energy and Commerce.
But Feinstein is also not alone when it comes to aging lawmakers in powerful
positions.
Feinstein is the second-oldest member of Congress behind Rep. Don Young
(R-Alaska), who is almost two weeks older. Sen. Chuck Grassley (R-Iowa),
chairman of the Finance Committee, is also 87, while Appropriations Chairman
Richard Shelby (R-Ala.) is 86. Armed Services Chairman Jim Inhofe (R-Okla.),
who is seeking reelection this year, is 85. Among House leadership - Speaker
Nancy Pelosi and Majority Whip Jim Clyburn are 80 and Majority Leader Steny
Hoyer is 81. Former Vice President Joe Biden will turn 78 shortly after
Election Day and Trump is 74.
Some Judiciary Committee Democrats defended Feinstein and said they see no
reason to try to replace her as ranking member.
"She's an extraordinary person and I'm fully confident in her leadership,"
said Sen. Cory Booker (D-N.J.).
"Her leadership has been really steadfast and courageous," said Sen. Richard
Blumenthal (D-Conn.). "She has extraordinary insights and instincts based on
her vast experience. I see no reason to question this leadership."
