RIP to the legend Dianne Feinstein – and the Senate Judiciary Committee just became a real challenge

Democratic Senator Dianne Feinstein has passed away. Much of the recent focus has been on her decision to remain in the Senate while her health was severely declining (the Republicans essentially forced her into doing this). But as time goes on, she should hopefully be remembered for the decades of trailblazing work she did, both as a Senator from California and the Mayor of San Francisco. In the meantime, her passing puts Senate Democrats in something of a bind.

California Governor Gavin Newsom will quickly appoint a replacement for Feinstein. Newsom could pick one of the Democrats already running for Feinstein’s seat in 2024. That list includes Adam Schiff, Katie Porter, and Barbara Lee. Alternately, Newsom could take the “neutral” route by appointing someone who isn’t running for the seat, under the agreement that the person not run in 2024.

Newsom will make whatever decision he’s going to make, and one way or the other Feinstein’s Senate seat will be quickly filled. That’s not a problem. The Democrats will retain 51 Senate seats going forward. Even with the potential resignation of indicted Senator Bob Menendez, the Democrats would still have 50 Senate seats plus the VP tiebreaker.

The problem – and it’s a big one – is the Senate Judiciary Committee. There’s a reason Dianne Feinstein didn’t retire a year or two ago when her health began faltering. Senate Republicans said they would try to block any attempt at replacing Feinstein on the Judiciary Committee. And since Feinstein was the deciding vote, she remained on the committee until her death, just to make sure the Democrats could keep confirming federal judges.

With Feinstein gone, Senate Republicans will likely make good on their threat to try to block the Democrats from replacing her on the Senate Judiciary Committee. If the Republicans succeed with this, the Democrats wouldn’t be able to confirm a single new judge from now until the end of 2024. This could become a catastrophic problem. So it’s a given that President Joe Biden and Senate Majority Leader Chuck Schumer will use any and all possible tools available to them to try to work around this and get someone new onto the Judiciary Committee. And it’s not yet clear how this will play out.

To be clear, neither side has a magic wand (in politics there simply are no magic wands). Senate Republicans currently have the committee appointment rules on their side, but that may not be absolute.

On the other side of it we’re going to see a bunch of nonsense posts go viral on social media about how the Democrats need to “grow a spine” and wave some unspecified magic wand in order to get Feinstein’s replacement onto the Judiciary Committee. But that’s not how the real world works. In reality these things come down to having the votes or not having the votes. Democrats will need to (and will try to) change the Senate rules. They’ll either have the votes to pull it off or they won’t.

Thus far Chuck Schumer has absolutely excelled at getting federal judges confirmed. In fact he has a far better track record of quickly moving judge confirmations along than former Majority Leader Mitch McConnell did. Now Schumer will face a very difficult task, and one that’s stacked against him out of the gate. But Schumer has shown that he’s willing to do anything necessary and possible in order to keep confirming judges. He’s certainly had some time to think about how to handle things if Feinstein did pass away before the end of her term. Now we’ll see what he has up his sleeve.

But that’s a tomorrow thing, or at least a later today thing. For now let’s take a moment to think back on Dianne Feinstein’s long and influential legacy. How many people even remember that she became the groundbreaking Mayor of San Francisco in the wake of the George Moscone – Harvey Milk assassination? Yes, her legacy goes that far back.

And while there will be chants of “she should have retired sooner,” the reality is that if Feinstein had retired a year ago, it wouldn’t have alleviated the current Senate Judiciary Committee conundrum. It would have simply brought about the current conundrum more quickly. We need to get into the habit of blaming Republicans, not Democrats, for Republican corruption. In any case, the stakes for 2024 just got even higher. If you’re not already involved in one or more competitive 2024 Senate or House races, now’s the time.