WASHINGTON — Senate Republicans are not inclined to offer Democrats an easy off-ramp to replace Sen. Dianne Feinstein, D-Calif., on the Judiciary Committee as she remains on medical leave with no timeline to return, aides tell NBC News.
In response to some Democrats calling on her to resign, Feinstein, 89, asked Senate Majority Leader Chuck Schumer to find a substitute for her on the powerful committee until she can come back.
With Feinstein’s absence, the committee, split 11-10, has delayed advancing more than a dozen of President Joe Biden’s judicial nominees for full Senate confirmation.
Replacing Feinstein on the panel, even on a short-term basis, would require approval from the full Senate. Schumer could ask for unanimous consent on a resolution to make that happen, but any one Republican member could object and block it.
In that case, Democrats would have to go through a lengthy process to garner the 60 votes required to break a filibuster — meaning 10 Republicans would have to join the other 50 Democratic members to allow Feinstein's replacement.
Five Republican aides involved in the process say GOP senators have not formalized a plan to address the Democratic request. But there appears to be broad consensus that Schumer and his colleagues will need to negotiate some sort of deal that Republicans would be willing to go along with, according to the aides.
The parameters of that deal are not clear, but could include an agreement about which particular senator would replace Feinstein and a specific discussion about which judges the panel would be willing to let through.
“You are asking Republicans to open the door to passing through a slate of judges we view as very controversial,” one senior GOP aide said. “Why would we do that without any kind of negotiation? And how would Democrats react if the situation was reversed?”
Mike Davis, former chief counsel for Senate Judiciary Committee Republicans, said the GOP should "absolutely not" allow Democrats to temporarily replace Feinstein to speed up judicial confirmations.
"Senate Republicans should never make it easier for Senate Democrats to rubber-stamp President Biden’s radical judicial nominees," Davis said, adding that it should be a "red line" — no negotiations.
Who could replace her?
The situation with Feinstein is unique: She is still a senator and has signaled her intent to stay in office until her term is up in 2025. But there is also no timeline for her return. While it's still unclear who would take her place, Feinstein's replacement could hold the seat for years.
Republicans have expressed more willingness to support a centrist candidate. Some have said a good fit would be Sen. Kyrsten Sinema, the Arizona Democrat-turned-independent who has warm relationships with many in the GOP.
“I have lots of ideas for Democrats on Judiciary, but they never ask for my opinion. Kyrsten Sinema would be as good as any of them,” Sen. Kevin Cramer, R-N.D., said.
A Republican senator on the Judiciary Committee said the party’s willingness to consent “would depend on who Democrats put forward.” The senator added: “If it’s someone moderate, we’d have an easier time swallowing that.”
Sinema hasn’t said whether she’s running for re-election. While she has a perfect record of voting for Biden’s judges, Sinema has teamed up with Republicans — and criticized the president — on issues like immigration, which the Judiciary Committee also oversees.
A Democratic aide slammed the prospect of Sinema as Feinstein's replacement: “Why would Leader Schumer reward her with that position after she trashed our members for being old Jell-O eaters?”
Sinema had insulted her Democratic colleagues, calling them "old dudes eating Jell-O" to a small group of GOP lobbyists earlier this year, according to Politico.
A headache for Democrats — and Feinstein
The stakes for Democrats are high. Schumer has made the confirmation of Biden judges a top priority in a divided Congress where substantive legislation is difficult to pass.
The approval of federal judges only requires a simple majority in the Senate — they aren't subject to a 60-vote threshold and don't need House consent.
A failure by Democrats to secure a temporary replacement for Feinstein could reignite pressure for her to step down.
Feinstein has conceded that her absence is a problem for the party efforts to confirm judges. Rep. John Garamendi, D-Calif., has said she doesn't need to resign and backed her call for a temporary committee replacement.
Committee seats in the Senate have historically been the prerogative of each party, and Democrats worry that if Republicans object to whomever Schumer introduces as a temporary replacement for Feinstein, it could lead to a wider politicization of committees.
“There are concerns about what this could mean for the Senate, what playing politics with committee assignments could mean,” a Democratic aide told NBC News.
Justin Goodman, a former Schumer aide who now works for the political consulting firm SKDK, said Republicans blocking a replacement would mean damaging the institution “for no good reason.” He added: “Reflexive obstructionism by Senate Republicans never goes over well.”
A spokesperson for Senate Minority Leader Mitch McConnell, R-Ky., declined to comment.
Although the Feinstein absence has caused headaches for the judiciary, and is in part why there have been calls for her to resign, Republicans familiar with the process believe that of the 14 judges yet to be confirmed by the committee, only four or five would need to be confirmed through a party-line vote.
Senate Judiciary Chair Dick Durbin, D-Ill., has repeatedly delayed committee meetings to send judges to the floor for votes since early March.
“Sen. Durbin wishes Sen. Feinstein well as she continues to recover,” Durbin spokesperson Emily Hampsten said. “And he looks forward to continuing the important work of moving judicial nominees through the Committee when the Senate reconvenes.”