Joe Biden, having learned from Barack Obama’s mistakes, has been nominating judges at a historically fast pace since taking office. However, earlier this year, when Sen. Dianne Feinstein (D-Calif.) was absent from the Senate due to serious neurological complications resulting from shingles, it sent judicial nominations to a grinding halt.
There were calls from within her party for her to resign, but she was never going to. Why? Because even though there was no doubt that Gov. Gavin Newsom (D-Calif.) would appoint a reliable leftist to fill her vacancy, Republicans had the power to keep her seat on the Senate Judiciary Committee vacant because it requires unanimous consent from the Senate, or 60 votes, to fill her seat on the committee.
It is for this reason that, while Feinstein eventually agreed to retire, there was no way she was going to resign before the end of her term. Republicans already refused to agree to temporarily replace Feinstein on the committee while she was hospitalized — and rightly so. But what are they going to do now that Feinstein has passed away?
Upon the appointment of Feinstein’s replacement, Senate Majority Leader Chuck Schumer (D-N.Y.) will no doubt put forth a resolution to have this person replace Feinstein’s seat on all her committees — including the incredibly consequential Judiciary Committee. It’s safe to say that at least one Republican senator will prevent unanimous consent, so is it possible that 10 Republican senators will vote for the resolution?
According to Politico’s Burgess Everett, the Senate GOP isn’t prepared to break precedent and fight over the committee vacancies. “Not a huge surprise but Senate GOP signaling there won’t be a fight over filling the vacant committee seats caused by Feinstein’s death,” Everett writes in a post on X, formerly known as Twitter. “[Sen. John] Thune [R-S.D.] says he expects [the] Senate to follow precedent, which is to allow committee vacancies to be filled. Judiciary is the big one, obviously.”
While this isn’t particularly shocking, I think this would be a mistake. For years Senate Democrats have been perfectly willing to play dirty and throw precedent out the window. During the presidency of George W. Bush, Senate Democrats frequently used the judicial filibuster to block Bush’s nominees while they were the minority party, arguing that the filibuster was essential to protect the rights of the minority party.
However, when Barack Obama became president and Republicans used it to block Obama’s judicial nominees, Harry Reid and the Democrats, having become the majority, eliminated the filibuster for lower-court judicial nominees, effectively preventing the Republican minority from using the same tactic Democrats had employed years earlier. It was a move Republicans could have made when they were in the majority but didn’t.
It wasn’t until Democrats attempted to obstruct the nomination of now Supreme Court Justice Neil Gorsuch that Mitch McConnell eliminated the judicial filibuster for Supreme Court nominees.
Last year, Democrats even pleaded with Sens. Joe Manchin (D-W.V.) and Kyrsten Sinema (I-Ariz.) to nuke the legislative filibuster in order to get the Democrats’ election takeover bills passed. Democrats never miss a trick to preserve their own power and have long shown a desire to exploit the rules when they suit them and then change the rules and abandon precedent when they don’t. You can bet that if the parties were reversed in this situation, Democrats would break precedent and not let Republicans seat a replacement to fill a vacancy on the judiciary committee if it meant allowing a Republican president and a Republican majority in the Senate to continue nominating and confirming judges.
Judicial nominations don’t even have to stop without filling Feinstein’s seat. All Biden has to do is nominate consensus judges that can earn Republican support, but he won’t. Despite running for president claiming to be a centrist and a consensus builder, Biden has nominated the usual radical leftist judges to the courts.
If Republicans allow Feinstein’s seat to be filled now, there’s no doubt in my mind Democrats would not respond in kind in a similar situation. So yes, Republicans should play hardball. We know the Democrats would.
