Josh Marshall: There are no good arguments for Feinstein remaining in office

[BeyondGeography]

Gillibrand’s Weak Defense

Sen. Kirsten Gillibrand (D-NY) took to the airwaves yesterday in defense of Sen. Dianne Feinstein (D-CA), arguing that it’s up to Feinstein to decide if and when she leaves office before the end of her term. Gillibrand says that many other senators have had serious illnesses that have kept them away from the Senate. “They all deserve a chance to get better and come back to work. Dianne will get better. She will come back to work.” This is not a strong or good argument.

…First, the Democrats have a 51 seat majority. Every day she’s absent makes confirming judges significantly harder. That is especially because she is not only one vote in the Senate. She’s also a critical vote on the Judiciary committee. Without her present, Democrats need at least one Republican vote to advance nominees to the floor. Given GOP control in the House confirming judges is the main thing the Senate is doing now. Every day she’s away is a big deal and she’s been away since February. Feinstein has asked that she be temporarily replaced on the Judiciary Committee. But Republicans have the power to block that move and almost certainly will do so.

…Second, this isn’t a matter of cutting short a Senate career over one illness. Feinstein has already announced she’s not running for reelection. So this would only be ending her Senate career about 18 months ahead of schedule. This is quite different from the time Sen. Lujan (D) of New Mexico, then age 49, was absent from the Senate after suffering a stroke in early 2022. He’s at the start of his Senate career and there’s every reason to think voters might return him to office for decades into the future. He’s thirty nine years younger than Feinstein. Similar facts apply to Sen. John Fetterman (D-PA) and his recent absence for treatment of clinical depression. The facts are just totally different.

Third – really the elephant in the room – while we have no formal diagnoses there is quite a lot of evidence that Feinstein is no longer truly capable of carrying out her Senate functions. There appears to be almost universal agreement that she’s suffered a precipitous cognitive and physical decline in recent years. If she were present in the Senate it’s likely that staff and colleagues could pick up the slack and cover for her. But that’s not the case. Taken together, these three facts make Feinstein’s situation categorically different even from Senators who have had to take lengthy time away from the Senate to recover from illness. There’s simply no argument for her remaining in office beyond personal pride and the awkwardness of the situation for those around her.

https://talkingpointsmemo.com/edblog/gillibrands-weak-defense

[ripcord]

1. People should be happy she has announced she is retiring after this term

She could probably get reelected in California.

[Celerity]

46. No chance she would get reelected in our State. A very weak de Leon became the first losing US

Senate candidate in US history to garner 5 million or more votes, having done so in the 2018 general election. California was not going to reelect a person who would be a few months short of 98 years old at the end of that term and who has been exhibiting cognitive issues for some time now. This extended absence has sealed that deal.

As of today, in US history, there have only been four US Senators (and only one US House Representative, Ralph Hall of TX) to serve when they were 90 years old or older. Feinstein and Grassley would be the 5th and the 6th.

Only one US member of of the US Congress, Strom Thurmond, ever won an election at 90 years of age or older (on November 5, 1996, when he was 93 years, 11 months and 3 days old). Ralph Hall lost his 2014 US House Texas bid in a run-off (he lost to John Ratcliffe) at the age of 91.

The 4 nonagenarian US senators (only Hayden was of sound mind and body at the end):

Carl Hayden (October 2, 1877 – January 25, 1972)
Oldest Age While Serving: 91 years, 3 months, 1 day
State: Arizona
Party: Democratic
Years Served: March 4, 1927 – January 3, 1969 (41 years, 9 months, 30 days)

Robert Byrd (November 20, 1917 – June 28, 2010) Died in office
Oldest Age While Serving: 92 years, 7 months, 8 days
State: West Virginia
Party: Democratic
Years Served: January 3, 1959 – June 28, 2010 (51 years, 5 months, 26 days)

Theodore F. Green (October 2, 1867 – May 19, 1966)
Oldest Age While Serving: 93 years, 3 months, 1 day
State: Rhode Island
Party: Democratic
Years Served: January 3, 1937 – January 3, 1961 (24 years)

Strom Thurmond (December 5, 1902 – June 26, 2003)
Oldest Age While Serving: 100 years, 29 days
State: South Carolina
Party: Democratic (before 1964) and Republican (from 1964 – 2003)
Years Served: December 24, 1954 – April 4, 1956; and November 7, 1956 – January 3, 2003 (47 years, 5 months, 8 days)

[tikka]

2. Gillibrand should keep her mouth shut after what she did to Franken

[RussBLib]

4. a lot of people have not forgiven her for that

I heard Al say in the not-too-distant past that if he could go back in time, he would not resign.

I wish he'd run again, but Amy is running again in 2024 and Tina Smith isn't up till 2026. Smith was appointed to fill Franken's seat.

[Butterflylady]

6. Gillibrand needs to be seen, but not heard.

A saying by my grandma about children. I think it should apply to Gillibrand also.

[FreepFryer]

13. Hear, hear. (nt)

[Renew Deal]

27. She didn't do anything to Franken

He did it to himself. He didn’t have to resign.

[Demsrule86]

29. Nonsense - The GOP did this. And Gillibrand was

the first to demand his resignation.

[Renew Deal]

45. Who was in the picture?

And who chose to resign?

Ask George Santos if he thinks Franken should resign.

[madaboutharry]

3. Power and prestige are hard things to leave behind.

That is even true when what is best for the people and the nation are at stake. Sometimes, even those who always acted in the interest of the people throughout their service find the leaving a hard thing to do. Amy Coney Barrett now sits on the SC for this very reason.

[Phoenix61]

14. Very well said. nt

[inthewind21]

48. Disagree

A.C.B sits on the Supreme Court because too few voting citizens could see the consequences of allowing Trump to be elected. Blame it on whatever politician staying to long, mis-information, propaganda, the Russians whatever you want. But the FACT IS, the POEPLE elect the government. And the people elected Trump. By direct vote for, against, 3rd party or not voting at all.

[CoopersDad]

50. That very fact, an addiction, should be a disqualifier.

Service to the community and to future communities must always be the reason for staying in office.

I'm sure it's hard for an official to be truly self-reflective and know when it's time to step back or step down.

On Saturday I volunteered to provide mock interviews with young AA students and one student blew me away when I asked him what Leadership means to him.

"Stepping Up, and Stepping Down"

--James, Grade 7.

[Wingus Dingus]

5. Josh Marshall is right, of course.

[Doc Sportello]

7. This shouldn't even be a debate

It's going to be hard enough to keep control of the senate in 2024 so they need to get as many judges appointed before then as they can. It's not the problem some have made it out to be, including those trying to turn it into an intra-party fight. Feinstein should resign so Newsom can appoint someone who will not run and then Dems can have a primary to settle the question of the next senator.

[regnaD kciN]

8. "BuT iT's SeXiSt!"

[Doc Sportello]

12. Yeah it's a lame claim

Here's a good retort to that:
https://www.theguardian.com/commentisfree/2023/apr/15/clinging-to-power-does-not-make-dianne-feinstein-a-feminist-hero

[Sky Jewels]

23. And ageist!

She’s not even 90 yet!

[Marius25]

16. Unfortunately, it's too late for that to help

Her Judiciary seat can't be filled by her replacement without Republican approval. So even if she resigns, Judges will only get confirmed if the GOP allows it.

She should have resigned before the new Senate session.

[madville]

20. They can fill her spot if she resigns

Schumer can fill her committee seat if she resigns, they only need approval of the full senate to replace her if she doesn’t resign.

[onenote]

9. Bullshit.

First, according to Marshall, "every day she’s absent makes confirming judges significantly harder." Well, thus far during her absence, the Senate has confirmed 14 Biden judicial nominees. And that is despite the fact that at least two other (and as many as five) Democrats weren't available for those confirmation votes. With Fetterman's return, her absence is even less of an impediment (not that it was in the past) to confirming the 18 remaining judicial nominations that already have been approved by the Committee (with Feinstein's participation) but haven't been put on the floor for a vote. And as for her holding up the Committee from approving more nominees, many of those wouldn't come up for a vote until they've had committee hearings, and the committee can and has been holding hearings on nominees even during her absence (hell, they even held hearings on some nominees when Chairman Durbin was absent after testing positive for COVID). Might the time come down the road when, if she isn't able to return, Feinstein's absence actually delays the confirmation of judges? Sure. But we're nowhere near that time yet.

Second, the fact Feinstein isn't running for re-election is utterly irrelevant. And while I think Fetterman absolutely should not be pressured to step aside, the fact is that his illness is not a one time thing -- its a lifetime thing. He's acknowledged that he has suffered from depression on and off for much of his life. He has suggested that his stroke, which continues to affect him, has contributed to his difficulties. It wouldn't be much of a surprise if Fetterman has to take a break again at some point during his term.. to which I say, so what. He deserves the opportunity to come back from any setbacks he may incur (or to reduce his workload). So does Feinstein.

Third, Marshall is right - "we have no formal diagnoses" -- but that doesn't stop him from playing unlicensed doctor. For someone no longer capable of carrying out her Senate functions, Feinstein has been carrying them out better than some of her colleagues. Prior to her illness (and for most of her current term) she has missed fewer votes than some other members, including Bernie Sanders and, of course, Fetterman). In February she stood on the Senate floor and introduced multiple bills and spoke in support of them -- something that many other members of the Senate haven't done. As noted above, until her shingles diagnosis, she regularly attended the Judiciary Committee meetings in which a significant number of judges were considered and approved. Finally last Congress, she was the primary sponsor of more bills than many of her colleagues and saw a significant number of them through to Senate passage.

Marshall doesn't like Feinstein. Never has. But that doesn't give him license to make up shit.

[PortTack]

11. Thx....didn't know that judges were being confirmed...MSM luvs them some let's pile on!

Kicking the Senator and making it look as though the gqp has the upper hand.

[Marius25]

17. The Judges being confirmed are backed by Republicans

The most recent one was literally put forward as a nominee by Todd Young of Indiana. The newest nominee for the 5th Circuit has the support of Ted Cruz and John Cornyn.

These aren't liberal judges being confirmed.

[onenote]

22. Hate to break it to you -- almost all of Biden's judicial nominees have gotten some GOP votes

In 2022, 59 judges were confirmed. Only two didn't get any repub votes.
So far in 2023, 22 judges have been confirmed. Only three didn't get any repub votes.

I'm really curious, do you think we should stop celebrating the fact Biden has gotten so many judges confirmed since, in your view, none of them are liberal?

So i guess Biden isn't nominating liberal judges? The Judiciary Committee has approved around 20 judicial nominees that haven't been voted for on the floor. Some got no repub votes when considered by the Committee, some got 1 or more. Just like the ones that have been confirmed by the full Senate.

[inthewind21]

49. THIS

THIS is a HUGE part of the problem. "I didn't know judges were being confirmed. I heard in the media they weren't" And "but these judges are being supported by republicans." Waaaaaaaaaay too many solely depending on what they hear and not bothering to actually find out.

[Phoenix61]

15. So when is that time? How many months?

Because whenever that is, it’s going to be months after that before they will be seated on the Judiciary Committee. It doesn’t matter what she has done in the past. What matters is what she can do now and what she can do in the future. We have a small window to push as many sane judges on to the bench as possible.

How many of those 14 judges the senate approved had already cleared the Judiciary Committee?

[onenote]

24. All of them. And there are 18 more that have already cleared the Committee

Last edited Tue Apr 18, 2023, 01:12 AM - Edit history (1)

but haven't been voted on yet.

And there are several nominees who haven't had a Committee hearing yet and her absence doesn't prevent those hearings from moving forward.

In short, another month, maybe even two, isn't going to significantly impact the process of approving judicial nominations.

[Phoenix61]

25. Biden nominated judges for states with Dem senators first as they would be

easier to get through due to blue slip bs. The ones coming up will be harder. There are only 6 waiting for hearings.

“As of April 6, there are 99 Article III vacancies, 74 of which are current. There are 36 pending nominees: 18 waiting for floor votes, 12 waiting to be reported out of the Senate Judiciary Committee, and 6 waiting for hearings before the Committee. To date, 119 Article III judges have been confirmed during the Biden-Harris Administration.”

[onenote]

28. Yes, 18 nominees waiting for floor votes. Not impacted by blue slips.

All reported in early February, but not brought to the floor in the 7-8 weeks following Committee approval. Not Feinstein's doing.

February 2:
Tiffany Cartwright (W.D. Wash)
Bradley Garcia (DC Circuit)

Feb. 9:
Herman Vera (C.D. CA)
Dale Ho (SDNY)
Kenly Kato (C.D. CA)
Nusrat Choudhury (E.D.N.Y.)
Natasha Merle (E.D.N.Y)
Kymberly Evanson (W.D. Wash)
Myong Joun (D. Mass)
J. Kobick (D. Mass)
R. Lin (N.D. CA)
Casey Pitts (N.D. CA)
R. Reyes (E.D.N.Y)
T. Edelman (D. DC)
N. Ubudu (11th Circuit)
R. Bloomekatz (6th Circuit)
J. Rikelman (1st Circuit)
A. Johnstone (9th Circuit)

[Phoenix61]

37. Yes... and that has exactly what to do with Feinstein? nt

[onenote]

38. Some are claiming her absence is preventing any confirmations from occurring.

There are 18 nominees waiting to be confirmed that can be confirmed whether she is available or not. That's the point. People are acting like we have an immediate crisis and that no judges can be confirmed until she returns or replaced.

[Phoenix61]

40. The process is, Biden nominates, the Judiciary Committee approves.

the senate votes. Those 18 are at the senate votes stage for which Feinstein isn’t critically needed. The 6 that haven’t cleared the judiciary committee and any future Biden nominees need her or her Dem replacement to be there to vote for them. That is what they are saying. No one will clear the committee without her or her replacement.

[onenote]

42. No, some are clearly saying no judges can be confirmed until she is replaced.

You should read some of the posts.

And while it is possible that no additional judges will be reported out of committee in her absence, if she is back in a month, those pending nominees could be voted out immediately, in a single session. In the meanwhile, the backlog of 18 pending nominations could be dealt with during that month.

And, just to be clear, it is not a certainty that none of the nominations pending before the committee won't be reported because of her absence. On February 2, 2023, Sen. Welch was unavailable to participate in the Judiciary Committee's consideration of over a large list of judicial nominees. If the republicans had opposed them in lockstep, none could have been reported out. But a dozen of them were reported out. How did that happen? Turns out, believe it or not, Lindsay Graham is enough of an institutionalist that he voted in favor of a dozen judges even though every other Republican voted in opposition.

Would or could that happen while Feinstein is out? I don't know. Maybe it wouldn't. But I wouldn't be completely shocked if a few of the pending nominations actually do get reported out notwithstanding Feinstein's absence.

Finally, I'll repeat what I've said over and over. If Feinstein can't return in a month or two, she should step aside. But she deserves the same opportunity to recover and return as accorded other members who have been out due to illness, particularly because there is plenty of work with respect to confirming judges that can and should be done even during her absence.

[Demsrule86]

30. I am sorry. We will not get judges if this continues. Should her legacy include more GOP

Judges confirmed at some later date? Since we have a very tough Senate map and may lose the Senate in 24, our juges may not get confirmed... and there will be many such judges unless Feinstein returns to the Senate or resigns. If we can't confirm judges, our situation is dire in terms of the GOP creating a rogue judiciary which further limit our rights. Any judge slot left behind, may be appointed by the GOP at a later date. And that would spell disaster for us...an unforced error indeed. It also threatens our very Republic.

[onenote]

39. "IF".

People are demanding she resign immediately. We have 18 judges awaiting confirmation by the Senate right now. I've said all along that if she isn't able to return in a month or two, she should step aside. But she is entitled to the same opportunity to recover from her illness as other Senators have been accorded given that her absence is not materially delaying things. If, in a month, she is back, the nominees pending before the Committee could be dealt with in a single session. And by then, all of them will have had hearings -- a necessary predicate for having a committee vote (and hearings aren't delayed by Feinstein's absence).

If you're really concerned about vacancies being left unfilled you should be directing your concern at President Biden, who hasn't named nominees for more than 30 vacant seats and at Schumer, who has dawdled in bringing nominees to the floor for a vote.

[Phoenix61]

41. But her absence is materially delaying things. There are 12

judges stuck in committee waiting on a vote and 6 behind them waiting on hearings then a vote. There are additional nominations that will happen in the future.

[onenote]

43. Her absence doesn't impact hearings.

In fact, there is a hearing scheduled today. There was a hearing on several nominations last month while she was out. There even was a hearing while Chairman Durbin was out (along with Feinstein) because of his COVID diagnosis.

As for the nominations pending a vote in committee, if she's back in a month, they could readily be voted on in a single session. Meanwhile, during that month, the 18 nominations that are awaiting floor votes could be taken care of, clearing the path for floor consideration of the next batch of nominees. As it stands, even if the nominees pending in committee could be confirmed today, there is no guarantee that they'd be considered on the floor before the 18 that already are awaiting action.

[More_Cowbell]

10. GOP rejects committee replacement

https://www.nbcnews.com/politics/congress/republicans-reject-feinstein-committee-swap-putting-democrats-bind-rcna80117

As was blindingly obvious.

[bigtree]

18. Josh Marshall wants to sacrifice a Democratic Senator to republican hardball

...over seating a replacement.

Who in the republican party has guaranteed they won't filibuster that new committee assignment?

Not only are Democrats in the Senate angling to get played completely, they're letting republicans dictate the future of a Democratic senator.

They need to vote to change the filibuster rules on the replacement.

How likely is it that Senate republicans would allow a retired Feinstein replacement to be seated?
https://www.democraticunderground.com/100217835750

[Phoenix61]

26. 100%. There's a precedent for replacing senators who

are unable to complete their term. Yes, there would need to be a vote but it would be much easier to get the 10 votes to do something that they have done before than to do an extra special favor for a Dem Senator.

[Demsrule86]

33. A simple majority is all that is needed.

[Phoenix61]

36. Do you have a source? I've been looked for hours and can't

find anything that says that specifically. I see lots of posts saying it takes 60 and can’t find anything that says other wise.

[Demsrule86]

31. If Feinstein resigns there is no filibuster. A simple majority is all that needed.

She must resign.

[Demsrule86]

34. They don't need 60 votes if she resigns.

[Demsrule86]

35. She is leaving 18 months anyway.

[David__77]

19. Is it actually physically impossible for her to appear for votes?

I wonder.

[Demsrule86]

32. She is not there so who knows?

[UTUSN]

21. K&R

[Tom Rinaldo]

44. I understand why many Democrats say Feinstein should be allowed to decide on her own

when it is time to retire. Frankly, they have little choice but to take that stance in public. Feinstein can't be removed from office against her will. If there is anything worse than having a Senator stay in office well past the point when he or she needs to retire, it is having his or her party concede in public that the Senator can no longer handle what is required of the job, and still have that person refuse to leave office.

What I disagree with is Democrats vigorously defending her right to stay in office. It goes without saying that Feinstein legally has to right to remain, that can be acknowledged by simply saying just that, that it is up to her to decide when it is time for her to step down. No further rallying to her side is required than that. I hope behind the scenes that most of the Democrats who express confidence that Feinstein will leave office at the appropriate time on her own, are privately urging her to do so now.

There have been many more elderly male Senators than elderly female Senators. Mostly that's because, until recently, the Senate has been overwhelmingly, as opposed to just disproportionately, male. There have been countless examples of the egos of aging male Senators being nursed by no one objecting to their staying in that body well past their personal prime. And of course every older Senator has to be judged on their personal ability to continue to serve well in that post. One retirement age does not fit all.

However at very few points in our history has the importance of Federal judicial appointments been more apparent than it is right now, and Feinstein is filling a critically important seat. Her staff can not cover for her there. If Feinstein were a male Senator, under these circumstances, I would expect him to step aside also

I have nothing but respect for Diane Feinstetein. She is a bit moderate for my personal taste, but she is a fine public servant and a true ground breaker for women. I lived in San Francisco when the tragic assassination of Mayor George Moscone thrust her suddenly into office. She was outstanding at that time, and served well in every position she has held. I worked closely with her office back when I was setting up homeless youth programs in SF working with Catholic Social Service in the 80's, and I met with her in that capacity. My personal feelings about the Senator remain positive, this isn't peronal, but she can best serve her nation now by resigning.