Dianne Feinstein’s Health and the Judicial Confirmation Crunch
Donald Trump has said thousands of offensive and dangerous things, but the one haunting me at the moment is merely annoying: his mocking putdown of former President Barack Obama for supposedly leaving Trump a gift of over a hundred judicial vacancies to fill. “I don’t know why Obama left that. It was like a big, beautiful present to all of us. Why the hell did he leave that?” Trump asked in a 2018 speech in Ohio. “Maybe he got complacent.”
No, as Trump presumably knows, Senate Republicans got obstructionist. But the Former Guy’s badgering from five years ago is a warning to Senate Democrats today, especially as pressure mounts on them—including the ailing Sen. Dianne Feinstein—to keep President Joe Biden’s judicial confirmations speeding along.
Trump won the White House in 2016 after promising conservatives he’d stack the federal judiciary with movement-approved conservatives. We are all living with the results, headlined by the Supreme Court crippling state regulation of firearms and last year’s Dobbs ruling overturning Roe v. Wade. U.S. District Judge Matthew Kacsmaryk, a Trump appointee in Texas, just ordered a national ban—even in states where abortion is legal—on mifepristone, a medication abortion pill approved 23 years ago by the Food and Drug Administration. After days of conflicting lower court rulings, the Supreme Court delayed the ban and all restrictions on mifepristone availability through this coming Wednesday.
Feinstein was for decades a leader on the issues of gun control and abortion. She wrote the national assault weapons ban that was in effect from 1994 to 2004 during a career shaped by the 1978 shooting deaths of two political colleagues in San Francisco, and scored the Supreme Court last year for dangerously expanding its interpretation of the Second Amendment “far beyond precedent” and common sense. She voted against the nominations of Supreme Court Justices John Roberts and Samuel Alito because of their abortion views, she told Michele Swers for her 2013 book on women in the Senate. Last year, after the Dobbs decision, Feinstein said the Senate should restore legal abortion with 51 votes instead of the supermajority needed to overcome a filibuster. “Let me be clear,” she said in a statement. “If it comes down to protecting the filibuster or protecting a woman’s right to choose, there should be no question that I will vote to protect a woman’s right to choose.”
Republicans may not admit it or act like it, but the conservative court takeover they engineered is a political emergency for them, given the vast gulf between GOP positions and public opinion on guns and abortion. It is an emergency of another sort for many Americans, as mass shootings and dangerous pregnancies continue to demonstrate.
For Democrats, meanwhile, Trump’s pell-mell race to confirm very conservative judges has made it a judicial emergency. They are racing to confirm more liberal judges—including an “unusually high numbers of public defenders, civil rights lawyers and labor lawyers,” according to NBC—while also seeking to bring more gender and racial diversity to the federal bench. “They have a responsibility to do every single thing that they can to rebalance the judiciary and dilute control” of Trump’s judges, Sarah Lipton-Lubet, president of the progressive Take Back the Court Action Fund, told me. “There are few things more urgent for the Senate to do than fill these open seats.”
I can’t imagine Feinstein disagreeing. But the California Democrat, at 89 the oldest sitting senator, has missed 58 floor votes since receiving a shingles diagnosis in February. Beyond this physical setback, several reports since late 2020 have described lapses that indicate a cognitive decline.
The Senate has no remote floor voting procedure Feinstein could use while she is recovering at home in San Francisco, and there is no timetable for her return to Washington or even certainty that she will return. And while she’s gone, most judicial nominations are indefinitely on hold in the Senate Judiciary Committee. They can’t advance without a majority on the committee, and without Feinstein there’s a 10-10 party split.
The committee did manage a bipartisan voice vote approving Matthew Brookman’s nomination as district judge in Indiana, and the Senate confirmed him March 29. But ten nominees for federal district and circuit courts are still awaiting a final vote in committee and two more had committee hearings March 22. And that doesn’t even count dozens of current and imminent openings: There are 58 district court vacancies and six on circuit courts that are all awaiting nominees, Christopher Kang, co-founder and chief counsel for the progressive group Demand Justice, told me.
An underground rumble of calls for Feinstein to resign erupted into public view last week. In what the Hill called “a stunning move” by a fellow California Democrat, Rep. Ro Khanna was the first lawmaker to go public. As the tide of angst rose, Feinstein requested a temporary leave from the Judiciary Committee and a replacement to fill in. But a rules change like that requires 60 votes, and at best, Democrats have 50 without Feinstein. And, as an NBC headline put it, “Republicans want to make it difficult for Democrats to replace Feinstein on key panel.”
Whatever deal Democrats negotiate—if any—they should make no promises about keeping the “blue slip” tradition that gives individual senators what amounts to a veto over prospective judicial nominees from their home states. It’s not a law. It’s not in the Constitution. Biden, when he chaired the Senate Judiciary Committee, used blue slips to assure consultation but considered them advisory, not binding. And ditching blue slips is the only way to make sure Democrats’ brisk confirmation pace does not, as Lipton-Lubet put it, “grind to a halt.”
Senate Republicans ignored the blue slip tradition for circuit judges during the Trump years and confirmed 17 of them over the objections of Democratic senators. Sen. Richard Durbin, the current committee chair, is continuing to ignore them for circuit court nominations, but still shows what the New Republic calls “inexplicable deference” to blue slips for district court nominees. There are at least 39 reasons that he should get over it, fast.
That’s the number, by Kang’s count, of district judge openings in states with one or two Republican senators: seven apiece in Texas and Florida, three apiece in Missouri and Louisiana, two each in Alabama, Indiana, Oklahoma and South Dakota, and one each in Alaska, Arkansas, Kentucky, Nebraska, North Carolina, South Carolina, Tennessee, Utah, Wyoming, Montana, and Wisconsin.
The most recent casualty of this “tradition” is Mississippi’s Scott Colom. Biden nominated him to be a district judge last October but he is still waiting for a confirmation hearing. His Republican backers include two former governors and Sen. Roger Wicker, but Sen. Cindy Hyde-Smith said this month she opposes him. Her reasons were flimsy—a George Soros PAC donation to his 2015 district attorney campaign that he didn’t solicit or know about, a position he didn’t take on women’s sports—and Colom asked her last week to reconsider her opposition.
Kang, a former committee counsel for Durbin and White House deputy counsel for Obama, seemed incredulous that Hyde-Smith—“an election denier” who objected to the 2020 election results—might be able to singlehandedly block a popular prosecutor with bipartisan support. What will Durbin do? He hasn’t said yet, but he should seize this perfect moment to end the tyranny of the blue slip for all federal judges.
Feinstein fought to restore the blue slip tradition in 2019, but that was before Roe was overturned. If she is willing to waive the filibuster for abortion rights, maybe she’d now be willing to waive blue slips for judicial nominees for the same reason. But who outside her family and closest aides could know?
Her office has continued to post pointed tweets and press statements during her absence. For instance, she promptly called Kacsmaryk’s mifepristone ruling “appalling.” Is she writing these statements and tweets? Signing off on them? Or are her aides taking care of things? This would not be unprecedented. Sen. Strom Thurmond retired at 100 and by the end his aides were helping him onto the floor and audibly telling him how to vote.
Still, what’s so deeply sad is the contrast between Feinstein’s current fragility and the pioneering female senator who used to take newly elected women to lunch and advise them on how to run a Senate office. She chaired the Intelligence Committee, topped the Senate’s twenty women in Sunday talk-show appearances between 2010 and 2013, and played a key role in mainstreaming family and children’s concerns. “Women’s issues have become everyone’s issues,” she told me for a magazine article ten years ago.
Maybe it’s the urgency of the moment, not just for guns and abortion but for U.S. democracy, that is now driving some Democrats to be so openly blunt. Jon Lovett, a former Obama speechwriter, said on his podcast last week that the people around Feinstein should stop the “farce” of pretending she can do her job. “She has to resign and more people should be calling on her to resign,” he said.
It’s not polite and it’s not fair, but he’s not wrong. Judges can be a president’s deepest and most lasting legacy. If you leave dozens of judicial openings for your successor, Trump taunted Biden in a 2020 presidential debate, “you can’t be a good president.” Given how much is on the line right now, he’s not wrong, either—especially if you and your party have the power to avoid that and don’t use it.