The Vexing Case of Sen. Feinstein

Discussion about whether Senator Dianne Feinstein should step down from the Senate because of health issues that adversely affect her capacity to carry out the responsibilities of office are dogged by the twin specters of age and sexism. Speculation that Feinstein suffers from cognitive decline has been in the news for some time. Her current absence from Washington due to a prolonged case of shingles gives rise to a new round of questions about her health and ability to serve her constituents and the nation.

The immediate, pressing concern relates to Feinstein’s role on the Senate Judiciary Committee, which has 11 Democratic members, 10 Republicans. In her absence the committee is deadlocked and Republicans can block confirmation of President Biden’s judicial nominations. As PBS NewsHour congressional correspondent Lisa Desjardins reported, "the Senate hasn't been doing anything else except for nominations. Democrats wanted to get judge after judge after judge on the federal bench" (Bennett, Sen. Feinstein). Every judicial opening left dangling is a seat on the bench waiting to be occupied by a judge in the mold of Matthew Kacsmaryk if Republicans take back the White House and a Senate majority next year, a possibility that cannot be discounted and should not be downplayed.

Feinstein has requested a temporary replacement on the committee until she can return. Republicans will not go for it. It gets worse.

There are some questions about whether the GOP would even fill Feinstein’s slot on Judiciary if she did resign, given that restoring Democrats’ majority on the panel effectively allows them to unilaterally confirm nominees. Sen. Jon Tester (D-Mont.) said that "whether she resigns or not, it isn’t gonna make any difference."(Everett, et al., Senate Dems).

It is fair to note two other members of Congress who recently resumed their duties following absence due to illness. Senate Minority Leader Mitch McConnell had a brief absence after suffering a concussion. Rep. John Fetterman’s absence for treatment of depression was of greater duration. Fetterman is a first-term member of the House minority, not an influential senator with a position on a crucial committee. His absence will not have lasting impact. Feinstein’s will if it continues beyond the short term.

The matter of cognitive decline is a separate and more sensitive issue because of its nature—as far as I know there has been no clinical diagnosis, only speculation—and because there are other members of Congress, notably some of them men, whose mental acuity is open to question but who have been spared public scrutiny and suggestion that they are not able to fulfill their duties and responsibilities.

Desjardins related a quite ordinary encounter with Feinstein just prior to the shingles episode:

The charge here is that Senator Feinstein is mentally unfit. I spoke to her the last week that she was here in February. It was a normal conversation. It was short, but normal. Other reporters have had different experiences. Notably, she did not seem to know when her retirement was announced. But her office tells me that she is in charge. She is daily speaking with them. (Bennett, Sen. Feinstein)

Without naming names, she spoke of personal experience with other members of Congress who did not exactly appear to be at the top of their game:

I can count on both hands—I need both hands to say how many older male senators I have spoken to who have been confused, who haven't understood me, including one who called me, had a rambling conversation that was very confusing, that person no longer in the Senate.

She went on to note that a third of the Senate’s members are seventy or older. They tend to occupy the most senior and powerful positions. This is cause for concern for all sorts of reasons, not least because many of us lose a step or maybe even several as we move into our seventies. I certainly have. This does not mean they can no longer function at a high level or should be pushed out because of age, but neither should it be blithely dismissed as inconsequential.

The question of a double standard is inevitable. Nancy Pelosi was quick to question the motives of those who speculate about Feinstein’s fitness for her position and suggest she should step down: "I don't know what political agendas are at work that are going after Senator Feinstein in that way. I have never seen them go after a man who was sick in the Senate in that way."

Pelosi earned respect for her performance as Speaker of the House under the Trump regime and during the first two years of the Biden presidency where she played a key role in the administration’s major legislative accomplishments. Her instinctive defense of Feinstein is understandable. She was subjected to annoying—and it turned out demonstrably unfair—questions about her age and continued ability to lead when Democrats recaptured the House in 2018, and from the beginning of her career she experienced obstacles faced by women making their way in politics still too much with us today. The better response is not to use these inequities for rationalization that gives Feinstein a pass when genuine questions and concerns arise but rather to hold her male counterparts to the same standard.

Feinstein’s Democratic colleagues in the Senate are right to tread lightly here. The decision is hers to make. We can appreciate that it is difficult without muzzling ourselves about what is at stake. The hopeful scenario is that lost time on judicial confirmations can be made up and harm minimized if Feinstein is able to return to Washington soon. With due regard for her, with respect for her career and legacy, there is nothing out of line about recognizing that things may not play out as we hope and trying to prepare for the consequences.

My aversion to mandated age and term limits for elected officials is deep-rooted and not entirely rational. Maybe the Feinstein moment can be an occasion for thinking about ideals of civic virtue and responsibility that live more in rhetorical flourish than practical application but nonetheless have their place in the ethic of social and political life. Knowing that there comes a time to step away from high office and find other ways to serve one’s country is an element of that virtue.

References and Related Reading

• Geoff Bennett, Sen. Feinstein faces more calls to resign over absence from Capitol Hill, PBS NewsHour, April 14, 2023

• Michael R. Blood, Associated Press, California Sen. Feinstein won’t run for reelection, leaves open field for replacement, PBS NewsHour, February 14, 2023

• Burgess Everett, Jennifer Haberkorn, Katherine Tully-McManus, Senate Dems wrestle with Feinstein resignation chatter, Politico, April 18, 2023

• Burgess Everett, Katherine Tully-McManus, Republicans line up against replacing Feinstein on critical committee, Politico, April 17, 2023

• Tal Kopan, Ted Garofoli, Colleagues worry Dianne Feinstein is now mentally unfit to serve, citing recent interactions, San Francisco Chronicle, April 14, 2022; Updated: Oct. 26, 2022

• Eugene Scott, Andrew Solender, Women lawmakers come to Feinstein's defense, Axios, April 19, 2023