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Democrats raise alarms as Feinstein's absence stalls Biden's judicial picks

Concerns are growing on both ends of Pennsylvania Avenue that Feinstein, who holds a pivotal vote on the Judiciary Committee, is hindering Democrats on confirming judges.
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WASHINGTON — Alarm bells are ringing among prominent Democrats about Sen. Dianne Feinstein's lengthy absence from the Senate and the roadblock it presents to confirming judges.

The 89-year-old California Democrat hasn't cast a vote in the Senate since Feb. 16, announcing during her absence that she was hospitalized and recovering from shingles. The chamber returns to session next week after a two-week recess, but Feinstein has not provided a timetable for returning to Washington.

“I intend to return as soon as possible once my medical team advises that it’s safe for me to travel,” she said in a statement Wednesday evening.

Earlier in the day, Feinstein spokesperson Adam Russell said they “don’t have an update at this time” on when she will be back.

It has sparked concern on both ends of Pennsylvania Avenue, with some Democrats worrying that it is hindering the party on a first-order priority for President Joe Biden, Senate Majority Leader Chuck Schumer and Judiciary Committee Chair Dick Durbin: reshaping the judiciary and topping the 234 judges that Republicans confirmed under Donald Trump.

“Confirmations have been a top priority and shared success for Schumer and Durbin. But the lack of full Democratic attendance on Judiciary is becoming a bigger and more unsustainable problem for that work every day,” a Democrat involved with confirming judges told NBC News, requesting anonymity to speak candidly.

The Senate has seen numerous medical absences this year, but Feinstein presents a unique problem for Democrats. She holds a decisive vote on the Judiciary Committee, which has 11 Democrats and 10 Republicans. The panel needs a majority present and voting to send nominees to the floor — a tie vote doesn’t cut it. Durbin has been forced to repeatedly delay committee meetings to approve batches of nominees that lack Republican support.

“This is an untenable position. This is putting all Democrats at a significant disadvantage, and the leadership needs to do something to try and get around her,” said Jim Manley, a former Senate Democratic leadership aide who is now a lobbyist. “They figured out a way to get her to step down as [the top Democrat] on the Judiciary Committee. Now they have to work on getting her to step down from the committee as a whole, and/or to retire.”

'She should resign'

Feinstein has announced she won't seek re-election in 2024, but she holds the seat for another 20 months. Some progressives say she should step aside now amid health struggles and questions about whether she still has the mental stamina to be an effective senator.

Rep. Ro Khanna, D-Calif., called on her to resign in a tweet on Wednesday.

Jon Lovett, a speechwriter for then-President Barack Obama turned co-host of “Pod Save America,” said on his podcast Tuesday: “Dianne Feinstein should no longer be in the Senate. She should resign. And more people should be calling on her to resign.”

Lovett, a California resident and Feinstein constituent, praised the senator's “incredibly storied and long and important career,” but said she is “now preventing us from being able to confirm judges.” He added that “what the people around Dianne Feinstein are doing — being part of this farce of having a lack of a senator in such an important job — is really wrong.”

Former Democratic Sen. Russ Feingold of Wisconsin, the president of the liberal-leaning American Constitution Society, said that absences are “impairing not only the Senate’s ability to confirm judges, but the Senate Judiciary Committee’s ability to advance nominations.”

Though he didn’t explicitly call on Feinstein to resign, Feingold said in a statement that if his former colleague “expects to be unable to participate in Judiciary Committee activities much longer, she could significantly help the situation” by “enabling another senator to take her seat on the Committee.”

In her statement Wednesday, Feinstein said she had asked Schumer about a temporary replacement.

“I understand that my absence could delay the important work of the Judiciary Committee, so I’ve asked Leader Schumer to ask the Senate to allow another Democratic senator to temporarily serve until I’m able to resume my committee work,” she said.

A spokesperson for Schumer said Wednesday night that the majority leader "will ask the Senate next week to allow another Democratic Senator to temporarily serve on the Judiciary Committee.”

Changing a committee assignment could require an act of the full Senate, meaning either unanimous consent or 60 votes to overcome a filibuster.

Feinstein's office declined to comment earlier Wednesday when asked about concerns that she is holding up potential new judges.

'Not that big an issue at the moment'

Part of the reason for the urgency is that Democrats have few consequential agenda items that can pass in the divided Congress, with Republicans controlling the House and strangling Biden’s legislative ambitions. But Democrats control 51 seats in the Senate and can confirm judges to serve for life with only their party's votes — as long as almost everyone is present.

They have been confirming judges at breakneck speed, reshaping the courts with a diverse slate of liberal judges in response to Trump and a Republican-led Senate confirming scores of young conservatives. Biden, who has secured 119 judicial confirmations so far, is currently outpacing Trump on judges.

Other Democrats familiar with the confirmation process counter that Feinstein's absence doesn't have much of an immediate impact. They note that 18 federal judicial nominees have already passed through committee and are sitting on the executive calendar ready for full Senate votes, buying time before Democrats are stranded. And they add that other absences, like Sen. John Fetterman, D-Pa., who has been receiving treatment for clinical depression, would pose obstacles to confirming nominees on the floor even if Feinstein were present to move them through committee.

“Long story short — it’s not that big an issue at the moment,” said one former Senate Democratic aide. “These things work themselves out, and it’s not like the Senate is lagging on confirmations.”

Beyond that, these Democrats note, it’s not so easy to replace a Senate committee member midsession — it would require revising the organizing resolution that set up the panels at the beginning of the year. That means achieving unanimous consent in the full Senate or 60 votes on the floor, regardless of whether Feinstein voluntarily steps aside from the Judiciary Committee.

“Hard to imagine Republicans playing ball to make it easier for Dems to confirm judges,” the former Senate Democratic aide said.