For years, Dianne Feinstein, the oldest sitting U.S. Senator, has been dogged by questions and rumors about her fitness to do the job. But on Wednesday, two lawmakers from her own party took the extraordinary step of calling for the 89-year-old’s resignation, bringing what many say privately into the open for one simple reason: federal judges.
Feinstein sits on the Judiciary Committee, and in a divided government where Democrats control the Senate by just two votes, judicial appointments are one of the only avenues through which the party can exert its power. Since Feinstein has been out sick with shingles—she was hospitalized in early March—her absence has effectively made it impossible for Senate Democrats to confirm President Joe Biden’s nominated judges.
That led two House Democrats—Reps. Ro Khanna of California and Dean Phillips of Minnesota—to ask her to step aside. To quell a larger uproar, Feinstein asked Senate Majority Leader Chuck Schumer to appoint a temporary replacement on the committee until she returns. But getting a substitute won’t be easy. Replacing the California legislator would require the Senate to pass a resolution with at least some measure of bipartisan support, either by unanimous consent or with no fewer than 60 votes. Democrats have a slim 51-49 majority, meaning Republicans determined to slow down Biden’s judicial nominations could block the measure and effectively force Feinstein to remain on the powerful committee.
“It’s a constructive first step,” Khanna tells TIME of Feinstein asking for a replacement. “I know that was in response to the tweet I put out, and I appreciated it. But my understanding is, it’s not so simple, that any Republican Senator can object to that, and it’s going to be hard to actually execute. So that’s why I think the cleanest thing is just to step down. What happens if it doesn’t work because the Republicans object?”
Senate Minority Leader Mitch McConnell’s office did not respond to a request for comment. Asked about the feasibility of the plan for a temporary replacement, Feinstein’s spokesman referred back to her statement requesting a replacement, which also said she’s continuing to work from home in San Francisco, and will return to the Senate when her medical team clears her.
It’s a painful reality that has raised the stakes for Senate Democrats on how to handle their oldest colleague. Other than passing a budget later in the year and raising the debt ceiling, confirming judicial nominees is one of the few things they hope to get done in this Congress, especially after stocking the judiciary with conservative judges became one of the most lasting legacies of the Trump Administration.
In just four years, former President Donald Trump appointed 234 new judges, far more than any other president in his first term. That included three justices to the Supreme Court, all of whom voted last year to overturn Roe v. Wade, and scores of others who have ruled against the Biden Administration on issues ranging from the White House’s loan forgiveness program to its immigration and border policy. But Biden and Senate Democrats have been quietly fighting back. As of February, the president had confirmed 105 judicial nominees, outpacing his three most recent predecessors, including Trump, at that stage of their first terms.
That all came to a halt when Feinstein was hospitalized in early March. Since then, she’s missed nearly 60 votes in the full chamber, and her absence has ground the Judiciary Committee’s work to a standstill. Now, discreet concerns about Feinstein’s ability to be an effective lawmaker have found new urgency. “The extremism of the Texas judge’s decision taking away the rights of women to have access to the abortion pill, combined with the revelations by Sen. Durbin that Sen. Feinstein’s absence is making it harder to confirm judges just has led to a lot of outreach by constituents of mine,” Khanna says, referring to the ruling last week that had suspended the approval of mifepristone. “I just echo publicly what many people are saying privately.”
Phillips shared a similar sentiment. “I have felt for some time that the Senator, who has had a remarkable career and she’s an American treasure, is increasingly lacking the ability and competency to serve,” he tells TIME. “I waited until a member of her own delegation made that same case.”
Not all Democrats or even all members of the California delegation are calling for Feinstein to step down before the end of this term. The lawmakers vying to replace her in 2024 have been more circumspect in their public responses. “He and the Senator both strongly believe the work of confirming judges is paramount, and he knows she’ll do everything to get back as soon as possible,” a spokesperson for Rep. Adam Schiff’s campaign tells TIME. Rep. Katie Porter has also abstained from asking her to resign. “I think the solution on the judges portion is to have her removed from her committee if she is unable to do her service,” Porter told MSNBC.
They may have their own political reasons for wanting Feinstein to stay put until the next Congress. If she were to leave early, California Gov. Gavin Newsom has said he would appoint a Black woman to fill her seat. That has led to widespread speculation that he would choose Rep. Barbara Lee, who is also already running for Feinstein’s seat in 2024 against Schiff and Porter. “I think her getting appointed to this seat two years before the election actually happens puts her in a much stronger position to win,” says one House Democratic aide. (Khanna, who endorsed Lee for Senate and is co-chairing her campaign, tells TIME that the race has nothing to do with his call for Feinstein’s resignation.)
Some have suggested ageism and sexism are at play in the calls for Feinstein to resign. She may be the oldest current Senator, but she’s not the oldest ever; that would be the late South Carolina Sen. Strom Thurmond, who served until he was 100. “She deserves the respect to get well and be back on duty,” Speaker Emerita Nancy Pelosi told reporters on Wednesday. “I don’t know what political agendas are at work that are going after Sen. Feinstein in that way. I’ve never seen them go after a man who was sick in the Senate in that way.”
Indeed, Democratic Pennsylvania Sen. John Fetterman has been absent from the Senate for longer than Feinstein without receiving any criticism from colleagues in his party. Fetterman, however, who was seeking treatment for clinical depression, was not seen as holding up judicial appointments and has now set a date for his return to Congress. “I have great admiration for [Pelosi], but I think that’s an unfair accusation,” Phillips says. “I surely would be saying this about men in the same circumstance.”
It’s a thorny debate. Whether it intensifies or fizzles out will depend on how quickly the quagmire can be resolved, either by Feinstein’s return or by Schumer placing a temporary replacement on the Judiciary Committee. The most important priority is to get confirming judges back on track, Democratic Hill sources tell TIME. Otherwise, the calls for Feinstein to step down may proliferate.