Feinstein's death throws Senate judicial confirmations into new limbo

Sen. Dianne Feinstein’s death at 90 creates a vacancy on the powerful Judiciary Committee. Democrats could need 60 votes to replace her, leaving controversial judicial nominees in limbo until then.

Senate Republicans are signaling they won't try and block Feinstein's committee seats from being filled. Back in April, Republicans blocked Democrats from appointing a temporary replacement for Feinstein as she was ailing with shingles and unable to return to Washington for months.

"Under the circumstances, it's kind of follow whatever the precedent is," Senate Minority Whip John Thune (R-S.D.) said Friday.

Typically when a seat is vacant there is no fight about allowing vacant committee seats to be filled. Committee appointments are often done by unanimous consent.

Rules of replacement: If any Republicans were to object to a UC request, Democrats would need 60 votes to appoint a senator to fill Feinstein’s role on the Judiciary panel, meaning at least 10 Republicans would need to vote in favor of filling Democrats’ majority on the panel, assuming they move to do so before someone is appointed to the California Senate seat.

Senators are typically assigned to committees by unanimous consent, but such orders are subject to debate and can be filibustered. Republican senators could slow, or stop, Democrats from filling the Judiciary roster.

I understand and appreciate your point.

I would say that McConnell really had no choice but to do what he did or risk losing his leadership position.

In the case with Garland, McConnell had what was then called the "Biden Rule" as recent Senate precedent to fall back on. At the time, the White House was controlled by Democrats but the Senate was controlled by Republicans.

The Biden Rule:

SEN. JOE BIDEN (D-DE): “Can our Supreme Court nomination and confirmation processes, so racked by discord and bitterness, be repaired in a Presidential election year? History teaches us that this is extremely unlikely. Some of our Nation's most bitter and heated confirmation fights have come in Presidential election years. The bruising confirmation fight over Roger Taney's nomination in 1836; the Senate's refusal to confirm four nominations by President Tyler in 1844; the single vote rejections of nominees Badger and Black by lameduck Presidents Fillmore and Buchanan, in the mid-19th century; and the narrow approvals of Justices Lamar and Fuller in 1888 are just some examples of these fights in the 19th century.”
“…in 1800, 1828, 1864, and 1956-the President himself withheld making a nomination until after the election was held. …it is time to consider whether this unbroken string of historical tradition should be broken. In my view, what history supports, common sense dictates in the case of 1992.”
“The Senate, too, Mr. President, must consider how it would respond to a Supreme Court vacancy that would occur in the full throes of an election year. It is my view that if the President goes the way of Presidents Fillmore and Johnson and presses an election-year nomination, the Senate Judiciary Committee should seriously consider not scheduling confirmation hearings on the nomination until after the political campaign season is over.”
“I am sure, Mr. President, after having uttered these words some will criticize such a decision and say it was nothing more than an attempt to save the seat on the Court in the hopes that a Democrat will be permitted to fill it, but that would not be our intention, Mr. President, if that were the course to choose in the Senate to not consider holding hearings until after the election. Instead, it would be our pragmatic conclusion that once the political season is under way, and it is, action on a Supreme Court nomination must be put off until after the election campaign is over. That is what is fair to the nominee and is central to the process. Otherwise, it seems to me, Mr. President, we will be in deep trouble as an institution.”
(Sen. Biden, Congressional Record, S.16317, 6/25/1992)

McConnell does deserve more credit when it came to the confirmation of Amy Coney Barrett. President Trump nominated Barrett in September of 2020, less than two months before the presidential election. This seems hypocritical when put against the Republican argument against Garland back in 2016.

The Republican's defense was that: 1) in 2020 Republicans held both the White House AND the Senate (which was not the case in 2016), and 2) the way Democrats treated Brett Kavanaugh in 2018 demanded a punishment for their abuse of the confirmation process.

I give McConnell credit for taking the heat on this one, but I also point out the high stakes that the "golden ring" of building a Supreme Court ready to overturn Roe v. Wade has been a conservative goal in the making for decades. If McConnell tried to do a proverbial "thumbs up" like McCain did when he blocked overturning ObamaCare and prevent President Trump's nominee from being confirmed when we held both the Senate and the White House, McConnell would have been run out of DC.

-PJ

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