President Biden and Senate Democrats have a numbers problem.
With Republicans controlling the House — and showing little interest in bipartisan legislation there — the appointment of judges is one of the few ways that Biden can get something done on Capitol Hill: The Senate confirms federal judges, and the Democrats narrowly control the Senate.
But Senator Dianne Feinstein’s failing health has frozen the Senate Judiciary Committee, the group that must consider any judicial nominees before the full Senate votes on them. Feinstein, who’s 89 and has represented California since 1992, has been ill with shingles since February. She has also been struggling with her ability to hold conversations and the deterioration of her short term memory for more than a year. It is unclear when she will return to the Senate.
Biden and other Democrats had hoped for the appointment of judges — both to federal trial courts (known as District Courts) and to appeals courts (known as Circuit Courts) — to be a major accomplishment this year. That plan is now in doubt because Democrats do not have the votes to confirm judges without Feinstein.
Instead, about 20 Biden nominees are in limbo, and 9 percent of District Court and Circuit Court judgeships remain vacant. Among Biden’s unconfirmed nominees: Mónica Ramírez Almadani, a civil rights lawyer; Robert Kirsch, a former prosecutor who focused on white collar crime; and Kato Crews, an expert in labor law.
Until recently, Republicans often put more emphasis on appointing judges than Democrats did. That focus has contributed to conservative policy victories, with federal courts stymying liberal policies on climate change, immigration and workers’ rights.
The past few weeks have brought another such issue — abortion. Republican-appointed judges have issued rulings that would restrict the distribution of pills used to end pregnancies, an increasingly important part of abortion practice. The Supreme Court has paused the effect of those rulings through Friday while it considers the case.
Donald Trump, with help from Mitch McConnell and other Senate Republicans, was especially aggressive about appointing judges. Trump appointed more federal judges in his four-year term than any other recent president did in his first term:
As a result, Republican appointees held most judgeships on both trial courts and appeals courts when Biden took office. Biden’s fast start to judicial appointments during his first two years narrowed the gap, though. Today, 51 percent of appeals courts judges were appointed by Republicans, 43 percent by Democrats and 6 percent of seats are vacant, according to Russell Wheeler of the Brookings Institution.
To continue their progress, Democrats have tried to replace Feinstein on the Judiciary Committee, but Republicans blocked the switch this week.
Without Feinstein, Democrats have lost their one-vote margin on the committee, causing it to deadlock on nominees rather than advancing them to the Senate floor. Some progressive activists argue that Democratic leaders should try to change Senate rules so that the filibuster could not block a change to the Judiciary Committee membership, but Democrats may not have the votes to pass that change, my colleague Annie Karni, who covers Congress, says.
“Democrats are stuck,” Annie told me, “and they just hope she comes back soon.”
The other solution for Democrats would be Feinstein’s resignation. In that case, Gov. Gavin Newsom of California, a Democrat, would replace her, and he has pledged to name a Black woman to fill the seat. Either way, Feinstein has said she will not run for re-election next year, and three high-profile California politicians have announced their candidacies: Representatives Barbara Lee, Katie Porter and Adam Schiff.
‘About the nation’
Some Democrats have become increasingly bold about calling for Feinstein’s resignation or at least raising the subject:
“If this goes on month after month after month, then she’s going to have to make a decision with her family and her friends about what her future holds,” Senator Amy Klobuchar, a Minnesota Democrat, said this week. “This isn’t just about California; it’s also about the nation.”
“She has been an icon on issues of gun violence and women’s rights, but it has become painfully obvious to many of us in California that she is no longer able to fulfill her duties as she doesn’t have a clear return date,” Representative Ro Khanna, who represents Northern California, said last week.
“Senator Feinstein is a remarkable American whose contributions to our country are immeasurable,” Representative Dean Phillips of Minnesota tweeted last week. “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.”
Other Democrats, including Nancy Pelosi, the former House speaker, say that Feinstein has earned the right to remain and have suggested that the criticism of her is sexist. “I’ve never seen them go after a man who was sick in the Senate in that way,” Pelosi said.
Feinstein’s defenders are certainly correct that sexism plays a big role in American politics. But the biggest distinguishing feature of the current situation isn’t Feinstein’s sex. She is not the first female member of Congress to serve while old or ill. What makes this case different are the consequences.
No other aging member of Congress in decades, if not longer, has blocked one of his or her political party’s biggest priorities.
But Democrats do not seem to have a solution to their problem.
Related: Some Democrats have also called for an end to the “blue slip” process, which has given Republicans a veto over any Biden nominee to a trial-court judgeship in their home state. Read more here.
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