The last two years of Donald Trump’s presidency, despite Republicans losing their House majority, were a nonstop engine of conservative judicial appointments. After retaining control of the Senate despite losing the House in the midterm elections, Democrats had planned something similar for this Congress.
At the moment, however, their judicial conveyer belt is stalled. The reason: Senator Dianne Feinstein is on medical leave, depriving Democrats of their majority on the committee. There is no way of knowing when, or even if, she will return. If Feinstein were to resign now, she could immediately be replaced by a senator able to perform his or her duties. Feinstein, however, has refused.
She recently offered to let another Senate Democrat fill her Judiciary Committee seat until such time as she can resume her duties. The trouble is this maneuver would require either unanimous consent or 60 Senate votes, and Republicans have little incentive to supply the necessary cooperation. In the meantime, the Democratic Party’s ability to restock the judiciary rests in Feinstein’s hands.
Understood by nearly any moral calculus, the choice is obvious. Feinstein is 89 years old, well past both the age and the condition at which most people retire. Her personal wealth is in the high eight figures. She would be fine. On the flip side, her retaining control of a job she cannot perform is already eating up unrecoverable time, which will have effects on the composition of the judiciary that are impossible to calculate but likely to be very large, with an impact on laws affecting millions of people.
But the calculus employed by public officials, senators in particular, tends to discard standard moral calculations. It instead places all its weight on the prerogative of the famous and powerful to hold their titles as long as they wish. The office is a kind of private-property entitlement that no larger social good can override.
One well-known analog to the current deliberations over Feinstein’s decision is the similar debate that surrounded Ruth Bader Ginsburg. After Barack Obama won a second term, some liberals urged the Supreme Court justice (then an octogenarian cancer survivor) to retire while Democrats still held the White House and the Senate. Other liberals insisted it was slightly sexist, bad manners, or gross, to treat her so rudely. Ginsburg herself seemed to be motivated to cling to the office through a combination of believing in her own personal indispensability — how dare liberals presume some other justice could simply replace her like some mere cog in a voting machine? — and an aversion to the boredom of retirement. These arguments did not age well when Republicans proceeded to win the Senate and then the presidency, and then Ginsburg’s cancer returned.
Nancy Pelosi has, amazingly, chosen to recapitulate the defenses of Ginsburg’s non-retirement on Feinstein’s behalf. “I don’t know what political agendas are at work that are going after Senator Feinstein in that way. I’ve never seen them go after a man who was sick in the Senate in that way,” Pelosi told reporters yesterday.
Perhaps male senators have not faced similar calls to retire, but Feinstein’s predicament is unusual. For one thing, she has stuck to the office for an unusually long time, even by senatorial standards, to a point where her colleagues and staff openly doubt her cognitive functioning. The San Francisco Chronicle reported a series of alarming anecdotes last year: One California congressional Democrat “had to reintroduce themselves to Feinstein multiple times during an interaction that lasted several hours”; “some close to her said that on her most difficult days, she does not seem to fully recognize even longtime colleagues”; “a month prior, she repeated a question to a witness, word for word, in a hearing with seemingly no awareness of having done so.”
This situation might be tolerable — if far short of ideal — as long as her staff can guide her along. But when she’s recuperating away from Washington, her constituents are effectively disenfranchised.
Finding analogous cases of male Supreme Court justices pushed to the side isn’t hard. After a private lobbying campaign, Anthony Kennedy strategically retired in 2018, at the age of 81, enabling a Republican president to name his successor. In general, men and women in many fields of American life are routinely pushed out of their jobs when they reach an advanced age (often much younger than Feinstein). And nearly all those are cases in which the social value of the job is infinitesimal compared with that of a senator holding a decisive vote.
Pelosi isn’t arguing that it’s better for women on net to allow Feinstein to stay in office. That argument would be nearly impossible given the stakes of the judiciary on abortion rights, let alone on all the other issues handled by the courts. Her case rests on elevating the individual prerogative of a senator above the millions of people she serves. It is to forget that senators are public servants at all to conceive of the role as a place of honor in American life and believe that stripping it away constitutes some form of punishment.
The Senate imagines — and to an extent conducts — itself as an exclusive club. Its splendor and majesty are a favorite subject of senatorial speeches, especially in those rare moments when the body is functioning. The effect of this belief system on the egos of the 100 members is difficult to overstate. It provides the context in which Feinstein’s overly long good-bye seems rational and not an act of almost sociopathic indifference to the people she’s supposed to be serving.
