April 18, 2023 | Reading Time: 4 minutes
Should Feinstein resign? No
Progressives are dogpiling her, because they sense weakness.
The progressives are wrong about Dianne Feinstein. Yes, yes. I know, I know. The 89-year-old Californian has been out with a nasty case of the shingles. She’s missed more than 50 votes on the Senate Judiciary Committee. The president’s federal bench noms are queuing up. The rank corruption of Justice Clarence Thomas keeps begging hard for investigation.
They’re wrong. They’re wrong for practical, political reasons. This isn’t about the federal judiciary. This isn’t about the most geriatric member of the most geriatric Senate in US history. This isn’t about principles.
It’s about newfound power.
They’re not used to having it.
“It’s time for Senator Feinstein to resign,” said California Congressman Ro Khanna, a Democrat, last Wednesday. “We need to put the country ahead of personal loyalty. While she has had a lifetime of public service, it is obvious she can no longer fulfill her duties. Not speaking out undermines our credibility as elected representatives of the people.”
She’s “a remarkable American whose contributions to our country are immeasurable,” said Minnesota Congressman Dean Phillips, a Democrat. “But I believe it’s now a dereliction of duty to remain in the Senate and a dereliction of duty for those who agree to remain quiet.”
Sounds principled, don’t it?
Other progressive Democrats jumped on the dogpile, as did allies in the progressive punditariat. I’ll quote one of them. Here’s Mark Joseph Stern, legal affairs editor for Slate and its primo howling Cassandra: “Feinstein’s refusal to retire is currently wrecking Biden’s entire judicial agenda. It’s erasing the advantage that Senate Democrats gained in 2022. It’s grinding confirmations to a halt. It’s giving GOP senators even more leverage over noms. The damage here is just astounding.”
First, long before Feinstein got sick, the Senate Judiciary Committee had cleared more federal judges, and a more diverse slate of federal judges, than each of the president’s two immediate predecessors.
According to the AP, on December 29, “97 lifetime federal judges have been confirmed under Biden, a figure that outpaces both Trump (85) and Barack Obama (62) at this point in their presidencies, according to data from the White House and the office of Senate Majority Leader Chuck Schumer. The 97 from the Biden presidency includes Supreme Court Justice Ketanji Brown Jackson, that court’s first Black woman, as well as 28 circuit court judges and 68 district court judges.”
The AP report went on to say that three out of every four people tapped by the president and confirmed by the Senate in Biden’s first two years were women. Nearly 66 percent were people of color. Eleven Black women were sent to the circuit courts. Biden sent more Black women to the circuit courts than all past presidents combined.
If Feinstein were “wrecking Biden’s entire judicial agenda,” let’s admit the wreckage, to the extent it can be called that, is minimal.
But what about nominees right now?
Of those pending, there are nearly 20 awaiting hearings. The rest, however, testified before Feinstein called out sick. They can be confirmed out of committee. The bulk of “Biden’s entire judicial agenda” has less to do with Feinstein than with the majority leader, Chuck Schumer, who controls which Senate items get to the chamber floor.
Shouldn’t Feinstein resign anyway? That seems like a good idea.
But it’s not as simple as replacing an old Democrat with a new Democrat, according to Josh Chafetz, who wrote the book on the Congress. Even if Feinstein resigned today, he wrote, there’s still the Senate Republicans to deal with. The Democrats have a slim majority (51 votes). The opposing party, therefore, could “filibuster putting another Democrat on the Senate Judiciary Committee,” he wrote.
Committee Republicans signaled as much when they rejected Feinstein’s proposal to fill her seat while she recovers. US Senator Mitt Romney, of Utah, said: “They’d like Republicans to help them speed the appointment of more liberal justices? Yes, when hell freezes over.” Would they jam the panel if she resigned? You know the answer.
The alleged wreckage of “Biden’s entire judicial agenda” isn’t wreckage. So what’s going on? Feinstein has already said she won’t run for reelection. House Democrats from California, for instance Katie Porter and Barbara Lee, are lining up to replace her next year. Why are some progressives, and some progressive media allies, dogpiling her?
Because they can.
I mean this literally.
There was a time when Democrats like Feinstein were plated in adamantium. She represented the center of the party. Progressives were on the margins. There was no way of putting a dent in her. They could dogpile if they wanted to, but back then, dogpiles could backfire.
Since about 2010, the center drifted to Feinstein’s left. Since about 2018, it stayed there. During that transition, she became a frenemy in the progressive retelling of the history of the Democrats, a history that by necessity privileged gesture over actual legislative accomplishments.
Now that the center has completed its leftward drift, legislative accomplishments count for less than gesture. Gesture is a real political tool now, a means of isolating a once-invulnerable senator, making her seem as if on the outside looking in, as if she’d been there all along instead of the fact of the matter, which is that once-marginal progressives are now flexing a new power by uttering a few words.
People with real power don’t need reasons to use it. What they need is excuses. Khanna, Phillips and the progressives aren’t saints. They’re politicians. They’re on Feinstein, because in her, they sense weakness.
John Stoehr is the editor of the Editorial Board. He writes the daily edition. Find him @johnastoehr.