John Bresnahan and Marianne LeVine
Feinstein sometimes gets confused by reporters’ questions, or will offer different answers to the same question depending on where or when she’s asked. Her appearance is frail. And Feinstein’s genteel demeanor, which seems like it belongs to a bygone Senate era, can lead to trouble with an increasingly hard-line Democratic base uninterested in collegiality or bipartisan platitudes.
Just this week, Feinstein infuriated progressives after declaring her opposition to ending the Senate’s legislative filibuster — a top goal of party activists if Democrats win full control of the Congress and White House in November. Some on the left called on her to resign over the comments, although other Democratic moderates have expressed similar views.
In a phone interview, Feinstein pushed back hard against suggestions she could no longer effectively serve as ranking member of the Judiciary panel or is incapable of handling the upcoming nomination fight.
“I’m really surprised and taken aback by this. Because I try to be very careful and I’m puzzled by it,” Feinstein told POLITICO. “My attendance is good, I do the homework, I try to ask hard questions. I stand up for what I believe in.”
Feinstein relies heavily on her ever-present staff to deal with any issues, frequently turning to them for help in responding to inquiries. Feinstein had to be coaxed into wearing a mask around the Senate during the early days of the pandemic, despite being part of the most vulnerable age groups for the disease. She’s only made two floor speeches in the last nine months, her last being in early July, although she remains active in committee hearings.
And then there’s the lingering fallout over Feinstein’s role in the hugely controversial Judiciary Committee hearings for Justice Brett Kavanaugh in 2018, an issue that factors deeply into the questions about her suitability for this latest nomination fight.
Feinstein waited for several weeks before disclosing allegations by Christine Blasey Ford that Kavanaugh had sexually assaulted her when they were teenagers. The bombshell accusations nearly sank Kavanaugh’s nomination, and senators in both parties questioned why Feinstein didn’t move more quickly to disclose Blasey Ford’s statement.
A Democratic senator, speaking on the condition of anonymity, said a group of Feinstein’s colleagues want Sen. Dick Durbin (D-Ill.) or Sheldon Whitehouse (D-R.I.) to serve as the top Democrat on the Judiciary panel for the upcoming nomination hearings, which are expected to be extraordinarily contentious. This senator is worried that potential missteps by Feinstein could cost Democrats seats.
“She’s not sure what she’s doing,” the Democratic senator said of Feinstein. “If you take a look at Kavanaugh, we may be short two senators because of that. And if this gets [messed] up, it may be the same result.”
“I think it could impact a number of seats we can win,” the senator added.
Another Democratic senator said party leaders were “in an impossible position,” pointing out that Senate Minority Leader Chuck Schumer (D-N.Y) and other senior Democrats can’t replace a female senator for hearings on an expected female nominee to replace a deceased female Supreme Court justice.
However, the senator said there have been discussions among some Democrats about making changes to the seniority system next year due to their concerns over Feinstein. The California Democrat would be Judiciary chair if Democrats win the majority.
A third Democratic senator put it this way: “She can’t pull this off.”
Other Democrats privately said there have been complaints to party leaders that Feinstein is not capable of handling the Judiciary post in the current situation. Some of these senators said Feinstein should have retired rather than run for reelection in 2018 at age 85. Feinstein’s age was an issue in that campaign and was raised repeatedly in news reports, but she defeated Democrat Kevin de Leon by almost 10 points.
Feinstein has already stumbled once in tangling with Amy Coney Barrett, who is widely seen as the frontunner to be Trump’s Supreme Court nominee. At a 2017 hearing for an appeals court seat, Feinstein told Barrett that “the dogma lives loudly within you” — a remark that was instantly seized upon as anti-Catholic bias by Republicans.
Schumer declined to comment on Feinstein or her role on the Judiciary Committee.
To Feinstein, her work on the panel is comparable to what she’s seen from other Democratic ranking members across the Senate.
“And so it’s difficult for me to see, I don’t know what people expect,” Feinstein said. “I’ve been on the committee for a while. I’ve seen how the committee works and I’ve seen how other chairs on our side of the aisle work. I don’t see, to be very blunt and honest, I don’t see a big difference. I’m prepared, so that’s puzzling to me.”
Feinstein also pointed out that as the minority, Democrats only have limited weapons to wield in any nomination fight. McConnell eliminated the filibuster for Supreme Court nominees, so Democrats can slow the confirmation process down, but they can’t stop it as long as Republicans stick together.
“Let me say this — I know it’s going to be a fight, I understand that.” Feinstein said. “I don’t have a lot of tools to use, but I’m going to use what I have. We can try to delay and obstruct but they can run this process through. That doesn’t mean that we won’t fight tooth and nail.”
Feinstein — the first woman to serve as ranking member on Judiciary — has built a long record of legislative success since becoming a senator. She authored the 1994 assault weapons ban, pushed to increase automobile fuel-efficiency standards, and has been a leader on environmental and civil rights issues. Feinstein also led a long probe into the CIA’s post-9/11 interrogation and detention programs that led to the historic 2014 torture report.
When asked whether Feinstein is still capable of doing the job of ranking member, Durbin said, “I believe she is.” Durbin is next in line on the panel behind Feinstein. Sen. Patrick Leahy (D-Vt.) has served longer on Judiciary than any other Democrat, but he serves as ranking member on Appropriations and can’t hold both positions.
Durbin said he wasn’t aware of any discussion over replacing Feinstein. And as to suggestions from some of his colleagues that he should take over the Judiciary post, Durbin added, “I’m not going to get into that speculation.”
Whitehouse, a former U.S. attorney, wasn’t eager to discuss the Feinstein situation either, offering only a terse comment on the matter.
“She’s a very distinguished lady for whom I have great affection,” Whitehouse said, declining to comment any further.
There is recent Senate precedent in both parties for replacing senior senators who are seen as no longer capable of handling the job.
The late Sen. Strom Thurmond (R-S.C.) was replaced as the chairman of the Armed Services Committee during the late 1990s. And in 2008, the late Sen. Robert Byrd (D-W.Va.) voluntarily gave up his role as Appropriations Committee chairman. Over on the House side, committee chairs have been forced out at several key panels in recent decades, including Appropriations and Energy and Commerce.
But Feinstein is also not alone when it comes to aging lawmakers in powerful positions.
Feinstein is the second-oldest member of Congress behind Rep. Don Young (R-Alaska), who is almost two weeks older. Sen. Chuck Grassley (R-Iowa), chairman of the Finance Committee, is also 87, while Appropriations Chairman Richard Shelby (R-Ala.) is 86. Armed Services Chairman Jim Inhofe (R-Okla.), who is seeking reelection this year, is 85. Among House leadership — Speaker Nancy Pelosi and Majority Whip Jim Clyburn are 80 and Majority Leader Steny Hoyer is 81. Former Vice President Joe Biden will turn 78 shortly after Election Day and Trump is 74.
Some Judiciary Committee Democrats defended Feinstein and said they see no reason to try to replace her as ranking member.
“She’s an extraordinary person and I’m fully confident in her leadership,” said Sen. Cory Booker (D-N.J.).
“Her leadership has been really steadfast and courageous,” said Sen. Richard Blumenthal (D-Conn.). “She has extraordinary insights and instincts based on her vast experience. I see no reason to question this leadership.”