Dianne Feinstein has died at the age of 90. Given the intense focus during her final years on whether she was wrong to stay in the Senate when it appeared she was no longer able to do the job, it’s easy to forget what a forward-thinking trailblazer she was. In the 1970s, she became the first female mayor of San Francisco after an anti-gay extremist killed Mayor George Moscone and fellow city supervisor Harvey Milk. After serving two terms as mayor, she became the first female senator from California and then the first woman on the Senate Judiciary Committee. Throughout her time in office, she was a regular vote for gun control, gay rights, abortion rights, and more. There is no doubt that this is a sad day in American politics.
Her death will have many political ramifications that are going to play out over the coming days and weeks. California Gov. Gavin Newsom gets to appoint her replacement and is under intense pressure to live up to his promise to appoint a Black woman to the seat. Until Newsom fills the seat, Feinstein’s death also means Democrats no longer have a majority in the Senate, with Michigan’s Debbie Stabenow now out with Covid. The current 49-49 tie complicates passage of any short-term budget bills to avoid a government shutdown.
But there’s another, possibly more long-term and immensely consequential issue that could arise. Feinstein’s death could make it almost impossible for President Joe Biden to appoint new judges to the federal judiciary, including if somehow a Supreme Court vacancy opens in the next year and a half.
One of the most important victories of the Biden administration so far has been the way he has remade the federal judiciary. Federal judges sit for life, and President Biden has to date put 140 judges on the bench. These judges include the first Black woman on the Supreme Court Justice, Ketanji Brown Jackson. Biden’s appointees are also a more diverse group than any president has ever appointed in the past — by race, sex, and professional background. The effect of this new crop of mostly liberal (and some even progressive) judges will be felt for decades, long after Biden leaves office.
But with Feinstein’s death, Biden’s momentum here could come to a grinding halt. At the very least, we should expect a high-profile fight over what happens next.
The problem is that without Feinstein, the Senate Judiciary Committee has an equal number of Democrats and Republicans, 10 each. By Senate rules, every person that Biden nominates to become a federal judge, from trial court judge to Supreme Court Justice, has to get a majority vote from the committee before heading to the full Senate. With an evenly balanced committee, Republican solidarity could lead to a tie vote on every nominee.
In Biden’s first two years in office, the Senate had a special rule to deal with tie committee votes. That rule allowed nominations in the Judiciary to go to a vote in the full Senate after only four hours of debate on the Senate floor. Senate Democrats used this rule to move many judges to a vote, including Justice Jackson. However, when the Senate started its new session this past January, it did not include this special rule, which means there is no quick resolution of committee ties. Senate Democrats could try a much more convoluted procedure to “discharge” the tied committee vote, but that would involve unlimited debate in the full Senate, which means Republicans could filibuster the process. And given that a filibuster can only be broken by a vote of 60 members of the Senate, it would be unlikely that the Democrats could successfully discharge a tied vote.
Democrats are not without other options, though each has the possibility of being blocked. They could try to replace Feinstein on the Judiciary Committee, but that would be subject to filibuster by Republicans as well. Earlier this year, when Feinstein was sick and there were discussions of a temporary replacement, Republicans said they would not allow it. Will they change their tune now given that she has died? In the past, senators have routinely allowed replacements in these situations, but we know that past norms don’t necessarily hold any longer — especially with Republicans fearing the possibility, no matter how small, that President Biden could get another Supreme Court appointment.
Democrats could also try to change Senate rules to get rid of the filibuster for discharge petitions or committee replacements. As we’ve seen in the past, getting rid of the filibuster — called the “nuclear option” — ironically requires only a majority vote. And with a Feinstein replacement (and Stabenow returning from Covid), Democrats will have a 51-49 majority. But filibuster reform has been difficult in the past, and with maverick Democratic Sen. Joe Manchin and independent Sen. Kristen Sinema (not technically a Democrat any longer, but she still caucuses with them) still around, that vote might be difficult. It would certainly be very controversial.
There may be other workarounds, and there’s no doubt that Democratic Senate rule geeks will be looking into them obsessively in the coming days. But with the stakes as high as they are surrounding lifetime appointments to the bench, including possibly the Supreme Court, we can be assured that the Republicans will play vicious hardball on this issue. Whether Democrats find a way to win the game this time — after losing similar battles around the replacements of Justices Antonin Scalia and Ruth Bader Ginsburg recently — will quickly become one of the biggest questions in politics.