Hillary Clinton, in an interview with Time this week, said that 89-year-old Sen. Dianne Feinstein, who’s ailing both physically and mentally, should not retire from the Senate. She didn’t try to argue that Feinstein was actually, secretly, very healthy. Her argument was pragmatic. If Feinstein retires, Clinton said, Democrats won’t be able to replace her on the Judiciary Committee, and the Democratic plan to rebalance the federal judiciary would go poof.
“Here’s the dilemma: the Republicans will not agree to add someone else to the Judiciary Committee if she retires,” Clinton said. “I want you to think about how crummy that is. I don’t know in her heart about whether she really would or wouldn’t, but right now, she can’t. Because if we’re going to get judges confirmed, which is one of the most important continuing obligations that we have, then we cannot afford to have her seat vacant.”
I understand why Hillary Clinton, who has lived the life that Hillary Clinton has lived, would assume Republicans would pull the most cynical move available to them in any given moment.
But this theory—that Republicans wouldn’t allow a Feinstein replacement on the Judiciary Committee in the event she resigned—is one I see Democrats float more often than Republicans. In April, for example, when Feinstein was still away from the Senate and unable to attend to her Judiciary duties, Montana Sen. Jon Tester told Politico that “whether she resigns or not, it isn’t going to make any difference,” since Republicans wouldn’t allow a Judiciary replacement in the event of a resignation.
A paragraph later, though, Texas Sen. John Cornyn threw cold water all over that idea. Sure, they were filibustering Schumer’s request for Feinstein to be temporarily replaced on Judiciary. But that’s a whole other thing than not letting the majority have a majority on a committee.
“Traditionally that’s when the resolution has been changed—when somebody is no longer able to serve,” Cornyn said. “There’s never been a precedent for a temporary replacement, it’s my understanding. So if the circumstances were to change, I assume that the precedent would be applied.”
The top Republican on the Judiciary Committee, South Carolina Sen. Lindsey Graham, similarly said Feinstein would be replaced on the committee if she was replaced in the Senate.
“If she does resign, I would be in the camp of following the precedent of the Senate, replacing the person, consistent with what we have done in the past,” Graham told CNN.
Now … maybe Graham and Cornyn are big-time liars and would succumb to pressure to keep the Judiciary Committee deadlocked at 10–10 indefinitely. It’s important to understand, though, how substantial a break from precedent this would be—and why it’s not in anyone’s interest to break it.
Here’s the very basic idea: If you have the Senate majority, you get a majority of seats on the committee, too. Because you’re the majority! Sure, the specific committee ratios are negotiated between leaders at the start of new Congresses. But the basic fact remains: The Senate majority gets committee majorities. It’s common sense.
If Feinstein resigns, a new senator is named to her Senate seat, and the Senate minority successfully filibusters the Senate majority from having a majority on the Judiciary Committee, it would be more than just a break from precedent. It would violate a basic custom of legislative organization: that majorities get to be majorities. Were they to do such a thing, it would make the “nuclear option” inevitable—i.e., the majority would act to make votes on committee assignments filibuster-free. Then the minority would lose its leverage in negotiating committee ratios. Weaponizing committee assignments is a path that neither Democrats nor Republicans, who alternate in and out of the minority, are eager to go down.
Feinstein’s decision on whether to retire or not is between her and the people of California. But she is allowed to retire if she gets tired of working while being 89 and is in sharp mental decline and constant pain. I’m skeptical Senate Republicans would respond by breaking a foundational parliamentary principle—lol, jinxing it so bad with this post—that majorities get to be majorities. Democrats would have options if they tried, though. There’s no need to preemptively surrender to a move of Republican procedural extremism that Republicans themselves are saying they wouldn’t pursue.
Anyway! Hope Hillary Clinton is doing well.